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Case Analysis: Narmada Bachao Andolan v/s Union Of India

Narmada Bachao Andolan stands as a pivotal case in inter-state water disputes, centering on the lives of those affected by the dam construction on the Narmada River, India's fifth-largest. The river's potential for hydroelectricity and supplying water to arid regions sparked controversy over environmental clearances.

Despite disagreements between water resources and environment ministries, the Prime Minister's clearance, grounded in environmental impact studies and constitutional mandates like Article 21, triggered legal challenges. Writ petitions aimed to stall construction, presenting multiple contentions.

However, the court, emphasizing the separation of powers and acknowledging policy decisions' significance, permitted dam construction up to 90 meters, aligning with environment subgroup clearance and additional directives. The Supreme Court, recognizing water's constitutional importance under Article 21, played a crucial role in balancing developmental needs and environmental concerns in this complex interplay of law, policy, and environmental conservation.

Case Title: Narmada Bachao Andolan v. Union Of India And Ors.
Citation: Writ Petition (Civil) 328 of 2002.
Bench: Y.K. Sabharwal (former CJI), Justice K.G. Balakrishnan and Justice S.B. Sinha .
Date of Judgment: 15th March 2005.
Court: The Supreme Court of India.

Facts of the Case
In the Narmada water dispute, involving Rajasthan, Madhya Pradesh, and Gujarat, a tribunal was formed under the Interstate Disputes Act 1956 to resolve control, use, and distribution conflicts. The tribunal set the dam height and directed Gujarat to construct it. The Narmada Control Authority (NCA), an interstate administrative body, and a review committee were established per the tribunal's award.

An environment subgroup, an independent entity, was created under NCA. The closure of construction sluices in 1994 led petitioners to seek a comprehensive project review by an independent judicial authority, citing Article 21 of the Indian Constitution and ILO Convention No. 107. They emphasized the need for pre-reservoir filling catchment area treatment and rehabilitation.

Comparatively, the Sierra Club v. Robert Froehlke case halted a project for non-compliance with the U.S. National Environmental Policy Act 1969, but in India, lacking a similar law, administrative clearance was deemed non-violative of Article 21. Similarly, Tennessee Valley Authority v. Hiram G. Hill, which stopped a dam project due to endangered species, doesn't apply in India without an Endangered Species Act.

Appellant Argument`s
  • The appellant asserted that the environmental clearance in 1987 lacked due consideration, given the absence of pertinent studies, warranting a cessation of the Sardar Sarovar Project.
  • They contended against further submergence, advocating for a reduction in dam height to facilitate unimpeded relief and rehabilitation efforts.
  • The appellant argued that the Sardar Sarovar Project ran counter to the national interest, asserting a violation of Article 21 of the Indian Constitution in conjunction with ILO Convention No. 107.
  • They advocated for the involvement of independent agencies to assess environmental costs and propose mitigating measures. Additionally, the appellant stressed the incomplete status of the catchment area treatment program, insisting it should have been concluded before initiating reservoir filling.

Respondent Argument`s
  • The respondent contended that the decision-making process is an administrative function and should not undergo de novo review by the courts, emphasizing the judiciary's role as a guardian of fundamental rights.
  • They argued that when multiple perspectives exist, the government, after careful consideration, makes decisions immune to legal challenges. The respondent highlighted the holistic evaluation of environmental impact.
  • The respondent opposed the reduction of dam height, asserting that it would render power generation seasonal, causing a loss in overall power production.
  • NCA's autonomy and competence were emphasized, negating the necessity for additional independent authorities.
  • The government's profound concern for environmental aspects was underscored through available letters and documents.
  1. Whether the environmental clearance granted by the Union of India lacked proper study and consideration of environmental impact.
  2. Whether the conditions set by the Ministry of Environment were not adhered to.
  3. Whether the Narmada Control Authority displayed bias in awarding despite its status as an independent body.
Laws Applied (Cases):
  1. Section 4 of the Interstate Water Disputes Act, 1956.
  2. ILO Convention No. 107.
  3. Article 21 of the Indian Constitution.
  4. A.P. Pollution Control Board vs. Prof.M.V.Nayudu (Retd.) & Others, 1999.
  5. Vellore Citizens Forum, Petitioner v. Union of India and Others.
  6. Section 3 of the Environment Protection Act.

Procedural Challenge and Legal Framework: Narmada Bachao Andolan Case
In April 1994, the appellants initiated a writ petition, challenging the 1987 clearance for the dam's construction, asserting a lack of proper consideration. Despite the government's administrative decision to grant clearance after thorough examination, the appellants sought a halt to the dam construction.

The Supreme Court, in Kesavananda Bharati Sripadagalvaru and ors. v. State of Kerala and Anr., delineated the separation of powers among the state's three organs under the basic structure doctrine. The application of the precautionary principle, outlined in Vellore Citizens Welfare Forum v. Union of India, was emphasized. This principle shifts the burden of proof onto the party advocating a change in the status quo.

Judgment and Directive Pronouncements: Narmada Bachao Andolan Case:
The court underscored the expeditious completion of the vital project, emphasizing strict adherence to the stipulations and directives that formed the basis of the granted clearance.

Key Directives:
  • The dam construction should align with the tribunal's award, permitting construction up to 90 meters based on relief and realization subgroup clearance.
  • Beyond 90 meters, clearance from the environment subgroup is mandatory at each stage, with permission for construction above this height granted by the Narmada Control Authority (NCA).
  • States must diligently implement tribunal awards and provide rehabilitation to those affected.
  • The environment subgroup will continually monitor and work towards environmental improvement.
  • NCA is tasked to formulate, within four weeks, an action plan for advancing relief and restoration work.
  • The review committee will convene as needed, especially in cases of disputes before the NCA.
  • Grievances redressal authorities are empowered to issue directives to states for R&R program implementation, with the authority to approach the review panel in case of non-compliance.
  • Quarterly meetings of the review committee are mandated to oversee dam construction progress and R&R program implementation.

The Narmada basin waterway and power generation project, initiated in 1946, aimed to harness the water resources for both irrigation and electricity generation. During the initial survey, seven projects were identified, with Bharuch in Gujarat, and Bargi, Tawa, and Punasa in Madhya Pradesh being prioritized. After thorough examination, the proposed dam at Gora in Gujarat with a full supply level (FRL) of 161 ft (49.08m) was chosen. The foundation stone was laid by the late Prime Minister, Pandit Jawaharlal Nehru, on April 5, 1961.

In 1964, a committee chaired by Dr. Khosla was appointed by the Indian government to resolve the dispute over Narmada water sharing between Gujarat and Madhya Pradesh. The committee recommended a higher dam with an FRL of 500 ft (152.44m) in 1965. However, the government of Madhya Pradesh was not supportive of this recommendation. Consequently, in October 1969, the Indian government established the Narmada Water Dispute Tribunal (NWDT) under the Interstate River Water Disputes Act, 1956, to address the disagreement.

The NWDT issued its final award in December 1979, providing a resolution to the Narmada water dispute.

Public Interest Litigation (PIL): Balancing Justice and Publicity
Public interest litigation, initially an innovative measure to protect human rights and fundamental rights of the vulnerable, has expanded its scope to include probity in public life and environmental protection. However, there is a growing concern that PILs are being used for publicity rather than genuine public interest. Courts, while exercising their jurisdiction in writ petitions, must ensure they do not exceed their authority and only dispense justice according to the law.

The essence lies in the separation of powers, emphasizing that courts cannot govern, but rather act as sentinels to fundamental rights. The judiciary's role is crucial in striking down laws not in line with legal principles, emphasizing that the court is not above the law.

Policy Decisions: Navigating Governance and Judicial Oversight
The National Commission on Agriculture (NCA) and its subgroups, along with grievance redressal committees, play a crucial role in policy decisions. While reviewing committees monitor the NCA's activities, the courts should refrain from intervening in matters of public projects and policy decisions. In a democratic setup, elected governments are responsible for considering the diverse needs of society, making policy decisions after due diligence. Courts should avoid reviewing decisions made with care, ensuring that policy decisions align with the law.

Importance of Dams: Addressing Water Scarcity and Energy Needs
Dams are essential for storing water, addressing water scarcity, and providing irrigation to arid regions. They contribute to hydroelectric power generation and flood prevention. Despite concerns about ecosystem impact, the benefits of dams, including rainwater harvesting, outweigh these apprehensions. The storage capacity in India is relatively low, emphasizing the need for dams to secure water for various purposes, including agriculture and electricity generation.

Improving Society Intermingling: Tribal Welfare and Resettlement
Tribal communities affected by dam projects face relocation but are entitled to modern facilities. Resettled tribes in Gujarat express satisfaction with the quality of land provided. It is the government's responsibility to integrate tribal communities into the broader social fabric, ensuring they are not isolated from mainstream society. Balancing development with the welfare of marginalized communities is crucial for fostering social cohesion.

Right to Clean Water under the Right to Life: Constitutional Perspectives
In India, the right to access clean drinking water is derived from constitutional rights such as the right to food, a clean environment, and health, all encompassed within the broader right to life under Article 21. While Article 39 (b) of the Directive Principles of State Policy recognizes equal access to societal resources, the right to clean drinking water is not explicitly outlined.

The judiciary, as seen in the AP Pollution Control Board case, acknowledges the fundamental right of citizens to access clean water. This right, though not explicitly delineated, falls under the broader right to a clean environment and, consequently, the right to life.

Self Analysis
In a comparative analysis, it's evident that the Narmada Bachao Andolan case underscores the delicate balance courts must maintain between upholding environmental concerns and recognizing the government's authority in policy decisions. The judgment navigates complex issues of water scarcity, tribal welfare, and constitutional rights, emphasizing the court's role as a sentinel to fundamental rights rather than a policymaker.

The case highlights the judiciary's reliance on constitutional provisions like Article 21 and principles from precedents such as Kesavananda Bharati. Moreover, it emphasizes the significance of administrative autonomy, as seen in the court's acknowledgment of the National Commission on Agriculture's role. Law students can glean insights into the nuanced interplay of law, policy, and environmental conservation, understanding the judiciary's role in mitigating disputes while upholding constitutional rights and environmental protection.

In conclusion, the Supreme Court has issued specific directives regarding the construction of a dam, limiting it to a height of 90 meters. The clearance for this level has been granted by the Subgroup designated for this purpose, with any further construction requiring approval from the Environment Group for additional environmental clearance.

The National Commission on Agriculture (NCA) holds the authority to grant further permission for dam construction, and reports from grievance redressal authorities are to be accorded significant importance. In cases requiring further action, the grievance redressal authority is instructed to approach the review authority for appropriate orders.

The decision to grant clearance emphasizes the pressing issue of inadequate water availability even seven decades after gaining independence. This shortage violates Article 21 and the human rights resolutions of the United Nations. India's rivers possess the potential to alleviate the harsh conditions in arid regions where sufficient rainfall is lacking.

Policy decisions, unless conflicting with the law, fall within the government's prerogative, and the courts should refrain from reassessing such decisions. The use of Public Interest Litigation (PIL) should be circumscribed to prevent its misuse and maintain its intended purpose.

The conclusion also underscores the need for fostering social inclusivity in India, bringing diverse communities closer together. The government has a responsibility to provide essential modern amenities such as drinking water, electricity, irrigation, and rehabilitation facilities. The court's direction is contingent upon the absence of adverse circumstances and credible studies demonstrating harm to the ecosystem.

  1. LiveLaw
  2. Bar and Bench
  3. SCC Blog
  4. Manupatra
  5. JSTOR

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