19 Oct 2000

APEX COURT DECRIES PIL DEGENERATION: A NEWS ANALYSIS

From Jal Khambata

NEW DELHI: In its Narmada judgment, the Supreme Court has held that the Public Interest Litigation (PIL), an innovation essentially to safeguard and protect human rights of those people who were unable to protect themselves, "should not be allowed to degenerate to becoming Publicity Interest Litigation or Private Inquisitiveness Litigation."

"With the passage of time, the PIL jurisdiction has been ballooning so as to encompass within its ambit subjects such as probity in public life, granting of largess in the form of licences, protecting environment and the like. But the baloon should not be inflated so much that it busts," Chief Justice Dr A S Anand and Justice B N Kirpal said in the 183-page majority judgment delivered on October 18 while disposing off the PIL of Narmada Bachao Andolan (NBA) which had blocked construction of the Sardar Sarovar dam for the last five years.

They held that the NBA was "guilty of latches" in not approaching the Court at an earlier point of time though it had been agitating against the dam since 1986, before environmental clearance was given and construction started.

"When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against the national interest and contrary to the established principles of law that decisions to undertake developmental projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project," the Court observed.

In his dissenting judgment, Justice S P Bharucha, however, held that "given what has been held in respect of the environmental clearance, when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly."

The majority judgment refuses to review or re-examine the statutory Narmada Tribunal Award and even Bharucha agrees, stating at the outset in his 32-page judgment that "the Sardar Sarovar Project does not require to be re-examined, having regard to its cost effectiveness or otherwise, and that the seismicity aspect of the project has been sufficiently examined and no further consideration thereof is called for."
The only other area in which both the majority and dissenting judgments agreed was that those ousted by reasons of the canals emanating from the SSP cannot claim the same relief and rehabilitation benefits as granted to the project-affected oustees.

While Justice Bharucha has mainly dealt with the environment aspect on which he disagreed with the majority judgment wanting environmental revaluation of the project on the basis of the Environment Impact Assessment Notification issued by the Centre in January 1994, the majority judgment held that the procedure provided in 1994 for getting prior clearance "cannot apply retrospectively to the project whose construction commenced nearly eight years prior thereto." Justice Bharucha has devoted 26 of the 32 pages on environment alone to explain his disagreement with the majority judgment.

COURT'S ROLE: Stressing that "there is in our Constitutional frame-work a fairly clear demarcation of powers," the majority judgment stressed that "utmost care has to be taken that the Court does not transgress its jurisdiction." The Court observed: "In exercise of its enormous power the Court should not be called upon or undertake governmental duties or functions. The Courts cannot run the Government nor the administration indulge in abuse or non-use of power and get away with it. ... The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and rights of Indians but act within judicially permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of the policy the Court will not interfere."

Obviously keeping in mind the Madhya Pradesh Government dragging its feet in rehabilitation, the Court observed: "If for any reason, any of the state governments involved lag behind in providing adequate relief and rehabilitation, then the proper course for a Court to take would be to direct the Award's implementation and not to stop the execution of the project. This Court, as a Federal Court of the country, specially in a case of inter-state river dispute where an Award has been made, has to ensure that the binding Award is implemented."

The Court further observed that "in respect of public projects and policies which are initiated by the Government, the Courts should not become an approval authority." It said: "Normally such decisions are taken by the Government after due care and consideration. In a democracy, welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible government. If a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in Public Interest to require the Court to go into and investigate those areas which are the function of the executive."

The Court laid down the guideline for the judiciary to deal with the multiplicity of PILs challenging the government's policies. "For any project, which is approved after due deliberation the Court should refrain from being asked to review the decision just because a petitioner in filing a PIL alleges that such a decision should not have been taken because an opposite view against the undertaking of the project, which may have been considered, is possible. When two or more options or views are possible and after considering them the Government takes a policy decision, it is then not the function of the Court to go into the matter afresh and, in a way, sit in appeal over such a policy decision. What the petitioner (NBA) wants the Court to do in this case is precisely that."

Stressing that "a hard decision need not necessarily be a bad decision," the Court observed that the Government had decided to construct the dam "as that was the only solution available to it for providing water scare areas" and "it was known at that time that people will be displaced and will have to be rehabilitated."

RAJASTHAN BORDER: As regards environment concern about the areas to be submerged and its surroundings, the Court held: "The impact on environment should be seen in relation to the project as a whole. While an area of land will submerge, but the construction of the Dam will result in multifold improvement in the environment of the areas where the canal waters will reach."

"Apart from bringing drinking water within easy reach, the supply of water to Rajasthan will also help in checking the advancement of the Thar Desert. Human habitation will increase these which, in turn, will help in protecting the so far porous border with Pakistan."

The Court also observed that "the availability of drinking water will benefit about 1.91 lakh people residing in 124 villages in arid and drought-prone border areas of Jalore and Barmer districts of Rajasthan who have no other source of water and are suffering grave hardship."

The Court also saw merit in the government's stand that the project would have a positive impact on preservation of ecology and environment in several ways. Water taken from the project to the drought-prone and arid parts of Gujarat and Rajasthan would effectively arrest ecological degradation like salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. "The SSP by generating clean eco-friendly hydropower will save air pollution which would otherwise take place by the thermo-generation power of similar capacity."

As regards NBA's contention that the tribals were being crucified, the Court stressed that "displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. At the rehabilitation sites they will have more and better amenities than what they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress."
The court noted that the affected tribals are presently in "indigent circumstances" and "deprived of modern fruits of development such as tap water, education, road, electricity, convenient medical facilities, etc."

Instead of alleged large-scale relocation and uprooting of tribals of Madhya Pradesh, the Court pointed out that the affected project affected tribal families in the state were only 30 per cent while the remaining were non-tribals. The tribals actually constituted bulk of oustees in Gujarat (97 per cent) and Maharashtra (100 per cent).

Pointing out that the government has to always consider the conflicting rights as in case of the people of Gujarat, "there was only one solution, namely construction of a dam while the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water."

"When a decision is taken by the government after due consideration and full application of mind, the Court is not to sit in appeal over such decision," the Court said. Ruling out review, it said: "In a democratic set up, it is for the elected Government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken, then unless and until it can be proved or shown that there is a blatant illegality in the undertaking of the project or in its execution, the Court ought not to interfere with the execution of the project."

"There is evidence to show that the Sardar Sarovar Project had been contemplated and considered over a period of time at the highest level of the States and the Union of India and more so when the project is evaluated and approval granted by the Planning Commission, then there should be no occasion for any Court carrying out any review of the same or directing its review by an outside or independent agency or body," the Court observed.

DAM'S HEIGHT: As regards the NBA's challenge to the dam's height, the majority judgment said the Tribunal had "in no certain terms come to the conclusion that the height of the dam should be 455 ft" and "we, therefore, do not propose to deal with any contention which, in fact, seems to challenge the correctness of an issue decided by the Tribunal. It further said: "The allegation that the said project was not in the national or public interest is not correct seeing to the need of water for burgeoning population which is most critical and important.

The Madhya Pradesh Government is still pursuing its efforts to get its petition admitted for revision of the Narmada Tribunal Award for reduction of the dam's height from the awarded 455 feet to 436 feet to minimise further submergence and even pleaded during the NBA petition's hearing for reduction of the dam's height. The Court has, however, turned it down, pointing out that "not only will there be loss of power generation but it would also render the generation of power seasonal and not throughout the year."

As regards different states having different rehabilitation packages, the Court held that "there is no requirement that the liberalisation of the packages by three states should be the same extent and at the same time, the States cannot be faulted if the package which is offered, though not identical with each other, is more liberal than the one envisaged in the Tribunal's Award.

Since each state has its own rehabilitation package and the oustees are free to choose most attractive to him, the Court said a project affected family may choose to leave its home state of Madhya Pradesh in order to avail the benefits of more generous package of the state of Gujarat while other PAFs similarly situated may opt to remain at home and take advantage of the less liberal package of the state of Madhya Pradesh." The Court noted that "the rehabilitation packages of 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."

Admitting that loss of forest which will occur because of submergence in the project was "undoubtedly harmful", the Court said "but it cannot be ignored and it is important to note that these large dams also cause conversion of waste land into agricultural land and making the area greener." Stating how the large dam like Bhakhra Nangal dam from which Indira Gandhi canal draws water had helped in improvement of environment of western Rajasthan, the Court said: "SSP not only allows the farmers to grow crops in deserts but also checks the spread of Thar desert in adjoining areas of Punjab and Haryana." END