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Human Rights and Displacement: The Indian Supreme Court Decision on Sardar Sarovar in International Perspective

  • Philippe Culletf

Extract

The human and environmental consequences of big development projects such as large dams have been a focus of increasing attention in many countries. Large-scale involuntary resettlement caused by such projects has become particularly contentious in a number of situations. In India where many large dams have been and are being built, the Sardar Sarovar dam on the Narmada river has been at the centre of a storm for over a decade. The latest development in the history of this project is the judgment given by the Supreme Court of India on 18 October 2000 adjudicating a public interest litigation petition filed by the Narmada Bachao Andolan (NBA—Save the Narmada Movement). This decision is of great significance not only for the project itself but also from a broader perspective.

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* Thanks to Prashant Bhushan, Shripad Dharmadhikary, Shreyas Jayasimha, Sanjeev Kapoor, S. Muralidhar, Usha Ramanathan, Himanshu Thakker for their help in collecting materials, providing information and research or commenting on a draft version of this article.

1. Narmada Water Disputes Tribunal, Final Order and Decision of the Tribunal, Gazette of India, 12 Dec. 1979.

2. Cf. Patel, Anil, ‘Resettlement Politics and Tribal Interests’, in Jean, Dr`ze et al. (eds), The Dam and the Nation—Displacement and Resettlement in the Narmada Valley (New Delhi: Oxford University Press, 1997), p. 66.

3. Various agreements were signed with India and the states. See, e.g., Development Credit Agreement (Narmada River Development (Gujarat) Sardar Sarovar Dam and Power Project) between India and International Development Association, Credit No. 1552 IN, 10 May 1985 and Loan Agreement (Narmada River Development (Gujarat) Sardar Sarovar Dam and Power Project) between India and International Bank for Reconstruction and Development, Loan No. 2497 IN, 10 May 1985.

4. See, e.g., Parasuraman, S., ‘The Anti-Dam Movement and Rehabilitation Policy’, in Jean, Dréze et al. (eds), The Dam and the Nation—Displacement and Resettlement in the Narmada Valley (New Delhi: Oxford University Press, 1997), p. 26.

5. Morse, Bradford & Berger, Thomas R., Sardar Sarovar—Report of the Independent Review (Ottawa: Resource Futures International, 1992), p. xii.

6. Supreme Court of India, Narmada Bachao Andolan v. Union of India and Others, Writ Petition (Civil) No. 319 of 1994, Written Submissions on Behalf of the Petitioners, Jan. 1999 [hereafter NBA Petition]

7. NBA Petition, supra note at pp. 84–5.

8. Writ Petition No. 319 of 1994, Narmada Bachao Andolan v. Union of India & Others, Order of 5 May 1995.

9. Writ Petition No. 319 of 1994, Narmada Bachao Andolan v. Union of India & Others, Order of 18 Feb. 1999. The Order of 18 Feb. 1999 authorised construction up to 85. A later order of May 1999 allowed the construction of humps up to 88 metres.

10. Thanks to Shreyas Jayasimha for his help with research on this part of the article.

11. Supreme Court of India, Narmada Bachao Andolan v. Union of India and Others, Writ Petition (Civil) No. 319 of 1994, Judgment of 18 Oct. 2000, reprinted in 2000 (7) SCALE 16–22 Oct. 2000, p. 34 (hereafter Majority Judgment, page references are to the original judgment).

12. Majority Judgment, above n. 11 at p. 34.

13. Constitution of India, 26 Jan. 1950.

14. International Labour Organisation, Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, Geneva, 26 June 1957 [hereafter Convention 107].

15. Majority Judgment, above n. 11 at p. 46.

16. Majority Judgment, above n. 11 at p. 47.

17. Majority Judgment, above n. 11 at p. 48.

18. Majority Judgment, above n. 11 at p. 77–78.

19. Majority Judgment, above n. 11 at pp. 95–6.

20. Majority Judgment, above n. 11 at p. 124–5.

21. Majority Judgment, above n. 11 at p. 126.

22. Majority Judgment, above n. 11 at p. 114.

23. Majority Judgment, above n. 11 at p. 79.

24. See, eg, Lyla Bavadam, ‘Going Beyond the Narmada Valley’, 17/23 Frontline, 24 Nov. 2000, p. 40.

25. Supreme Court of India, Narmada Bachao Andolan v. Union of India and Others, Writ Petition (Civil) No. 319 of 1994, Judgment of 18 Oct. 2000, reprinted in 2000 (7) SCALE 16–22 Oct. 2000, p. 34 (hereafter Minority Judgment, page references are to the original judgement).

26. See Notification on Environmental Impact Assessment of Development Projects, New Delhi, 27 Jan. 1994.

27. See, eg, Subhash Kumar v. Bihar, AIR 1991 SC 420 and Virender Gam v. Haryana, (1995) 2 SCC 577.

28. The court states, for instance, in Virender Gam v. Haryana, (1995) 2 SCC 577, 580 that the ‘[e]njoyment of life and its attainment including their right to life with human dignity encompasses within its ambit the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed.’

29. Notification on Environmental Impact Assessment, above n. 26.

30. Arlington Coalition on Transportation v. John A. Volpe, Secretary of Transportation, 4 Apr. 1972, 458 F.2d 1323.

31. See Ministry of Environment and Forests, Office Memorandum—Approval of Narmada Sagar Project, Madhya Pradesh and Sardar Sarovar Project, Gujarat from Environmental Angle, 24 June 1987, reprinted in Majority Judgment, supra n. 11.

32. See above at p. 9916.

33. Majority Judgment, supra n. 11 at p. 119.

34. Major sons are sons above 18 years of age who are treated as a separate family whatever their marital situation. See Narmada Water Disputes Tribunal, supra n. 1 at XI.I(3) and Majority Judgment supra n. 11 at pp. 129–130.

35. Majority Judgment, supra n. 11 at p. 130.

36. See Majority Judgment, supra n. 11 at p. 113.

37. International Covenant on Economic, Social and Cultural Rights, New York, 16 Dec. 1966, reprinted in 6 I.L.M. 360 (1967) and International Covenant on Civil and Political Rights, 16 Dec. 1966, reprinted in 6 I.L.M. 368 (1967).

38. Convention 107, above n. 14.

39. See Committee on Economic, Social and Cultural Rights, General Comment 7—The right to adequate housing (art. 11.1 of the Covenant): Forced Evictions, UN Doc. E/C.12/1997/4 (1997).

40. See United Nations Commission on Human Rights, Guiding Principles on Internal Displacement, UN Doc. E/CN.4/1998/53/Add.2 (1998).

41. World Commission on Dams, , Dams and Development—A New Framework for Decision-Making (London: Earthscan, 2000).

42. Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7.

43. Gabčikovo-Nagymaros, above note at § 140.

44. Ibid.

45. Separate Opinion of Vice-President Weeramantry, Judgment, I.C.J. Reports 1997, p. 7 at 111.

46. See International Bank for Reconstruction and Development, Resolution No. 9310—International Development Association, Resolution No. IDA 936, ‘The World Bank Inspection Panel’, 22 Sept. 1993, 341.L.M. 503, 520 (1995).

47. World Conference on Human Rights, The World Bank and the Promotion of Human Rights, UN Doc. A/CONF.157/PC/61/Add.19 (1993).

48. See, eg, ‘State Seeks $317 Million WB Loan for SSP-Based Scheme’, Ahmedabad Age, 9 Nov. 2000.

49. See Inspection Panel, Argentina/Paraguay: Yacyretá Hydroelectric Project (Lns. 3520/2854-AR)—Report and Recommendation, 26 Nov. 1996, in Alvaro, Umaña ed., The World Bank Inspection Panel: The First Four Years (19941998) (Washington, DC: The World Bank, 1998), p. 141.

50. See, eg, Anderson, Michael, ‘International Environmental Law in Indian Courts’, 7 Rev. Eur. Community & Int'l Envtl. L. 21 (1998).

51. See also, Visvanathan, Shiv, ‘Supreme Court Constructs a Dam’, 35/48Economic & Political Weekly 4176 (2000).

52. Article 5 of Convention 107, above n. 14.

53. International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989, reprinted in 28 ILM 1382 (1989) [here-after Convention 169] is of specific interest here. Generally, it notes that the need for a revision of Convention 107 stems from developments in international law having taken place since 1957. More specifically, its Article 6 concerning participation is much more developed than Article 5 of Convention 107. Similarly Article 16 Convention 169 is much more specific on participation than Article 12 of the old Convention.

54. Rio Declaration on Environment and Development, 14 June 1992, Rio de Janeiro, reprinted in 31 I.L.M. 874 (1992).

55. For an analysis of the issue of latches, see, eg, Iyer, Ramaswamy R., ‘A Judgment of Grave Import’, 35 Economic & Political Weekly 3913 (2000). Note also that the Majority Judgment, above n. 11 focuses its criticism of the petitioners on the fact that they challenged the environmental clearance given in 1987 only in 1994. It does not actually refer at this juncture to the other issues raised by the petitioners.

56. Majority Judgment, above n. 11 at p. 166.

57. Majority Judgment, above n. 11 at p. 111.

58. Majority Judgment, supra n. 11 at p. 172.

59. Cf. Jain, L.C., Dam Vs Drinking Water—Exploring the Narmada Judgement (Pune: Parisar, 2001).

60. See, e.g., World Bank, Draft Operational Policies 4.12: Involuntary Resettlement (March 2001) which recognises as its first policy objective that ‘[i]nvoluntary resettlement may cause severe long-term hardship, impoverishment, and environmental damage unless appropriate measures are carefully planned and carried out.’

61. See, e.g., Prashant Bhushan, ‘People be damned’, Hindustan Times 21 Oct. 2000.

62. The Supreme Court has, for instance, been very active in ordering the closure and relocation of polluting industries in Delhi. The process has been heavily criticised not only by industrialists unwilling to move but also from the standpoint of workers whose jobs and livelihoods are not part of the ‘environmental’ equation. For recent developments, see, e.g., the several articles published in Frontline of 22 Dec. 2000.

63. See, eg, Upadhyay, Videh, ‘Changing Judicial Power—Courts on Infrastructure Projects and Environment’, 35/4344Economic & Political Weekly 3789 (2000). Concerning the Tehri dam, see, eg, Divan, Shyam & Rosencranz, Armin, Environmental Law and Policy in India—Cases, Materials and Statutes (New Delhi: Oxford University Press, 2nd edn., 2001), p. 431441.

64. Majority Judgment, above n. 11 at p. 170.

65. R. Rangachari et al., Large Dams: India's Experience—A Report for the World Commission on Dams (on file with the author, June 2000).

66. Majority Judgment, above n. 11 at p. 129–30.

67. See Clause XIV, Narmada Water Disputes Tribunal, above n. 1.

68. Minority Judgment, above n. 25 at p. 30.

69. See Operations Evaluation Department, Learning From Narmada (OED Précis No. 88, Washington, DC: World Bank, 1995).

70. Cf. Shihata, Ibrahim F.I., The World Bank Inspection Panel: In Practice (New York: Oxford University Press, 2nd edn. 2000).

Human Rights and Displacement: The Indian Supreme Court Decision on Sardar Sarovar in International Perspective

  • Philippe Culletf

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