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Information Damned

Bal Krishna
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Information holds tyhe key, reveals the Supreme Court Judgement on Sardar Sarovar project

The Supreme Court of India in its order dated October 18, 2000 cleared the construction of the Sardar Sarover Dam as per the Award of the Tribunal created under section 4 of the Inter-State Water Disputes Act, 1956. The construction up to 90 m can be undertaken immediately and permission to raise the height beyond 90 m will be given by Narmada Control Authority (NCA) from time to time, after it obtains clearances from Resettlement and Rehabilitation (R&R) and Environment Sub-group. The verdict came after a 2-1 split in three members Supreme Court bench. Chief Justice A. S. Anand concurred with the judgment delivered by Justice B. N. Kirpal. In a dissenting judgment, Justice S. P. Bharucha observed, “Until environmental clearance to the project is accorded by the committee of experts, further construction work on the dam shall cease.”

The Sardar Sarovar Project (SSP). A mega project with mega promises. The project that claims to change the fortunes of Gujarat, and to some extent Madhya Pradesh, Rajasthan and Maharashtra. The Government claims that the multi-purpose SSP would irrigate more than 1.8 million hectares (mostly in Gujarat, some in Rajasthan) and quench the thirst of the drought prone areas of Kutch and Saurashtra in Gujarat. There would be power generation of 1450 MW and annual employment potential would be 7 lakh man-years during the construction and 6 lakh man-years in post construction. In addition, there would be additional annual production of Rs. 1400 crores on account of Agriculture Production, Domestic Water Supply and Power Generation. The opponents of the dam counter that these benefits are grossly exaggerated and would never accrue to the extent suggested by the Government. Instead the project would displace more than 320,000 people and affect the livelihood of thousands of others. Overall, due to related displacements by the canal system and other allied projects, at least 1 million people are expected to be affected if the project is completed. The Resettlement and Rehabilitation (R&R) measures undertaken by the respective governments have been extremely unsatisfactory.

Sardar Sarovar Project

Who holds the correct information?
We take this issue as a battle of information. The battle among unequals. On one side there is a big and powerful government machinery with massive infrastructure and resources and immense decision-making power and on the other hand there is a group of activists who, although have a cause, but have less resources and little access to information as not much data are in public domain in India.

Apparently it looks that none of the parties has complete information. The Department of Environment and Forests made its own assessment through a note of the Secretary, Ministry of Environment and Forests (October, 1986). According to it, the Ministry of Water Resources would take at least 2-3 years on analysis of aerial photographs and satellite imageries and the catchment area treatment programme can be formulated by three years thereafter; Wildlife census by Zoological Survey of India would take at least three years and survey by Botanical Survey of India would take three years.

The following paragraphs will reveal how accessibility, availability and authenticity of information hold the key in convincing and arriving at a particular conclusion. Interestingly, both parties have quoted information form the reports which they can conveniently quote and rejected the reports with which they were not comfortable. The Supreme Court, being part of the system has found the data forwarded by the Government of India more acceptable and reliable whereas Narmada Bachao Andolan (NBA) does not trust the studies conducted by Government of India and seeks “Independent Review”.

The NBA submits before the court that with regard to hydrology, the adoption of the figure of 27 million acre feet (MAF) is not correct and the correct figure is 23 MAF and in view thereof the height of the dam need not be 455 feet. The Supreme Court observes, “the Tribunal had in no uncertain terms come to conclusion that the height of the dam should be 455 feet. … the Tribunal award is binding on the States, it will not be open to third party like the petitioners to challenge the correctness thereof.” Still, it may be probed about how these parties came to different figures as far as the height of the dam is concerned.

At another instance, it has been submitted on behalf of the Union of India and the State of Gujarat that the petitioners (NBA) have given a highly exaggerated picture of submergence and other impact of the project, “…The petitioner’s assertion that there was a large scale relocation and uprooting of tribals was not factually correct.” Now again the question is who holds that factually correct data?

The cost and benefit of the project were examined by the World Bank in 1990 and it observed, “… Set against the futures of about 70,000 project affected people, even without the multiplier effect, the ratio of beneficiaries to affected persons is well over 100:1…” However, NBA prefers the report of a Commission called the Independent Review or the Morse Commission. The said Commission had been set up by the World Bank and it submitted its report in June, 1992. In the report, the Commission had adversely commented, “… Important assumptions upon which the projects are based are now questionable or are known to be unfounded. Environmental and social trade-off have been made, and continue to be made, without a full understanding of the consequences. As a result, benefits tend to be over-stated, while social and environmental costs are frequently understated. Assertions have been substituted for analysis.” However, the report was not accepted by the World Bank itself as is evident from its press release dated 22nd June, 1992 which states, “… the final version of the report is the sole responsibility of its authors; the report was not cleared by the World Bank.” The Government of India vide its letter dated 7th August, 1992 from the Secretary, Ministry of Environment and Forests did not accept the Morse report and commented adversely on it. In view of the above, the Supreme Court observes, “We do not propose while considering the petitioners’ contentions, to place any reliance on the report of Morse Committee,” which was neither accepted by the World Bank nor Government of India.

Resettlement & Rehabilitation
The total number of affected families in all the three States as per the Master Plan prepared by the Narmada Control Authority is 40727. The NBA claims that this figure is an under-estimate and the estimate of the land required for these Project Affected Families (PAF) is also one a much lower side due to lack of proper surveys. Not only that, the said R&R Sub-group merely accepts the assertions of the Government rather than verifying the claims independently. On this the Court observes, “Except for a bald assertion, there appears to be no material on which this Court can come to the conclusion that no proper surveys had been carried out for determining the number of PAFs who would be adversely affected by the construction of the dam.” The court goes even beyond when it says that in present case, the R&R packages of the States, specially of Gujarat, are such that the living conditions of the oustees will be much better than what they had in their tribal hamlets.

 

Environmental Impact
NBA submitted that environmental impacts of the Projects were going to be massive and full assessment of these impacts had not been done…Some of the studies were of poor quality and based on improper data and no independent body had subjected these to critical reviewuation. However the court observes, “…Various studies relating to environmental impact had been carried out. There are different facets of environment and if in respect of a few of them adequate data was not available it does not mean that the decision taken to grant environmental clearance was in any way vitiated. The clearance required further studies to be undertaken and we are satisfied that this has been and is being done. Care for environment is an on going process and the system in place would ensure that ameliorative steps are taken to counter the adverse effect, if any, on the environment with the construction of the dam”

The Court did not find any need for any independent review and it says, “…There is no reason whatsoever as to why independent experts should be required to examine the quality, accuracy, recommendations and implementation of the studies carried out. The Narmada Control Authority and the Environmental Sub-group in particular have the advantage of having with them the studies which had been carried out and there is no reason to believe that they would not be able to handle any problem, if and when, it arises or to doubt the correctness of the studies made.” In addition the Court is convinced with the benefits of the big dams. It says, “India has experience of over 40 years in the construction of dams. The experience does not show that construction of a large dam is not cost effective or leads to ecological or environmental degradation. On the contrary there has been ecological upgradation with the construction of large dams.”

However, the dissenting judgement by Justice S. P. Bharucha considers that the Environmental Clearance given to the project was “No clearance at all”. It quotes the noting done by the Ministry of Environment and Forests and the Ministry of Water Resources. …Indeed it is the view of the Ministry of Environment, Forests and Wildlife that what has been done so far whether by way of action or by way of studies does not amount to much and that many matters are yet in the early and preliminary stages”. The Notes make clear that the studies, censuses, mapping of areas and field surveys for the collection of data for assessment of the environmental impact of the Project were likely to take a further 2 to 3 years. An environmental clearance based on next to no data in regard to the environmental impact of the Project was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, “no clearance at all.”

No Information Sharing…
The Court says that the Central Government has taken a decision to construct the dam as that was the only solution available to it for providing water to scarce areas. It was known at that time that people will be displaced and will have to be rehabilitated. There is no material to enable this court to come to the conclusion that the decision was mala fide. A hard decision needs not to be a bad decision.

This raises a very fundamental issue. And that is of people’s participation in decision-making process. Were people of the concerned states involved and informed about the benefits and consequences of this project? Of course, the Government knew everything, but was there ever an informed debate on this project in this country?

…And no remedy from Supreme Court
Later on, if people come to know that certain aspects of the project are going to affect the people and injustice has been done to them, they even cannot approach the Court. The Supreme Court in its ruling clearly defines what it cannot do for the people of this country. It says, “It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructure project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after it’s execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a Public Interest Litigation does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.”

That laches aspect of the judgement is an interesting observation. The dissenting judgment has something different to observe, “The writ petitioners were not guilty of laches in that regard. In the writ petition they raised other issues, one among them being related to the environmental clearance of the Project. Given what has been held in respect of environmental clearance, when the public interest is so demonstrably involved, it would be against the public interest to decline relief only on the ground that the Court was approached belatedly.”

If you approach court beyond a point, one is guilty of laches. Interestingly, the court gave its judgement on this writ petition in October, 2000 when the petition was filed in April, 1994. There is a proverb saying, ‘justice delayed means justice denied’. If that is to be believed, one gets only judgements in Indian Courts not necessarily the justice. In this case, one can imagine how difficult it would have been for the NBA to collect the information to substantiate its argument regarding the project in our country which has to carry the burden of British legacy of data secrecy. That is not easy even for the government as is evident in the Ministry of Environment and Forests’ note to PM dated December 19, 1986 “Taking note of the fact that the project formulation has been in progress for more than three decades and the active interaction of the Project authorities with the Department of Environment has been going on for almost three years, the absence and inadequacy of data on important environmental aspects still persists.”

Information is the key
It could have been a possibility had these surveys were done properly, the information might have further strengthened the case of the Project Authorities or it might have given the credentials to the argument forwarded by the NBA. Both parties apparently fought the case with the “claimed truths’ or ‘half truths’. As far as the Supreme Court is concerned, it was convinced with the development model proposed by the Government. The chapter on SSP may be considered as closed after this verdict and everyone must respect the verdict. However, the issues related to data accessibility and quality, right to information, people’s participation in decision making, information sharing by the government with its people and even the relevance of the big dams can still be discussed and debated.