Ramaswamy R. Iyer

The Supreme Court judgment of October 2000 reiterated a clear link between rehabilitation and construction for the future. That is now sought to be changed.

IMPLICIT IN the appointment of a Committee to look at the status of rehabilitation work in the Narmada valley is the acknowledgement by the Government of India or at least a suspicion on its part that all is not well on the rehabilitation front. Clearly, the Soz report has not been in vain. However, if that were so, the construction work should have been stopped pending the determination of the actual position. This logically follows from the requirement that rehabilitation has to be completed six months prior to submergence. The fact that construction has gone far ahead of rehabilitation constitutes an illegality.

Some may well feel that construction can be allowed to proceed and that rehabilitation can be separately attended to and the backlog cleared, but that is not the legal requirement emerging from the Tribunal's Award and the Supreme Court's judgment.

For whatever reasons, the Prime Minister did not stop the work. Even the Supreme Court satisfied itself with the observation that it may have to stop the work at some future time. The learned judges warn the governments not to present the Court with a fait accompli, but it was entirely possible for the Court to have disabled that possibility: why did they not do so? The new group has now been asked to look into the matter, the intention being to bring rehabilitation up-to-date within the next few months. What does all this add up to?

The answer is clear: (i) an acceptance of illegality, (ii) an amnesty scheme for all failures so far (that is "oversight" indeed!), and (iii) a clear de-linking of construction from rehabilitation. The last point amounts to a rewriting of the Tribunal's award. One recalls that the immutability of the Tribunal's award had been proclaimed in ringing tones in the Supreme Court's judgment of October 2000. That judgment itself reiterated a clear link between rehabilitation and construction for the future. All that is now sought to be changed. Why?

Again the answer is clear. Pouring concrete is "development," good politics, non-negotiable. The infliction of hardship on the people, the non-fulfilment of promises made to them, the clear departure from the prescriptions of the Tribunal and the Supreme Court, are no doubt regrettable, but these things happen; one should take a practical, pragmatic view of these things. It is all very well to take a tough stand on demolitions of unauthorised construction in Delhi, but stopping unauthorised construction on a dam is a different proposition altogether.

The pari passu principle

In media articles and interviews, some commentators have offered their readings of the pari passu principle. Let me explain how this expression gained currency. In 1985-86, the Ministry of Water Resources and the Ministry of Environment and Forests (T.N. Seshan as Secretary, MoEF, and myself as Secretary, WR) were discussing whether the SSP was ripe for a clearance. The Ministry of Water Resources was arguing for a strictly conditional clearance to the project, but the MoEF felt that once a conditional clearance was given, construction would proceed apace and other things such as environmental and rehabilitation measures would become secondary and be neglected. It was in that context that I suggested that such a possibility could be prevented by stipulating a strict pari passu condition such that construction is not allowed to outpace environmental and rehabilitation work. The idea was that the pace of work on environmental and rehabilitation measures would determine the pace of work on construction.

Unfortunately, the pari passu principle was subsequently misinterpreted and turned on its head. The people who wanted to get ahead with the project argued that the building of the dam and the filling of the reservoir were slow processes that would take many years, and that there was plenty of time to take care of environmental and rehabilitation matters as the construction work proceeded. This meant (a) that the sense of urgency on the environmental and rehabilitation aspects was lost, and (b) that it was the pace of construction that would determine that of environmental and rehabilitation work and not vice versa, reversing the relationship that had been originally intended.

The pari passu principle (in the new sense) was severely attacked by the Morse Commission and by Baba Amte. They also questioned the very idea of a conditional clearance. Later developments, that is, lapses and non-compliance with every one of the conditions when reviewed in 1993, seemed retrospectively to prove Mr. Seshan right and me wrong in our 1985-86 discussions.

The pari passu principle as originally intended most definitely implied that in the event of failures on the rehabilitation front construction work must stop. The authority to proceed with construction work disappears if work on the environmental and rehabilitation aspects lags behind. (In fact, faced with such failures, the MoEF would be justified in withdrawing the conditional clearance.) There can be no other meaning to "conditional clearance."

In fact, it is not even necessary to invoke the pari passu clause. In terms of the Tribunal's award and the Supreme Court's judgments, land must be allotted one year before submergence and rehabilitation completed six months prior to submergence. There is simply no scope here for construction work to proceed regardless of the state of the rehabilitation work. The October 2000 judgment (profoundly unsatisfactory as it was) did clearly say that further raising of the dam height must at every stage be based on the progress of rehabilitation work. (I am not quoting the exact words.)

In justification of proceeding with the project, it has been argued that each day's delay adds a huge sum to the cost of the project. This is a familiar point. The implicit assumption here is that the project was well-formulated and rigorously scrutinised, that every relevant aspect was duly taken into account, and that all affected categories were taken into confidence and their concerns dealt with, prior to the approval of the project. If so, delays are certainly undesirable.

However, if during the course of implementation of a project, it becomes clear that there were serious flaws in the conception and formulation of the project; that important aspects had been overlooked; that new developments have emerged that call the basics of the project into question; that many categories of project-affected persons (PAPs) had not been consulted or even identified at the project-formulation stage; that the project would cause much more misery and inequity than had earlier been foreseen; or that the project as originally conceived was simply no longer viable; under those circumstances, should we still proceed with the project on the theory that "there must be finality at some stage," or "there cannot be endless reviews"?

In conclusion, let me take the argument against delay and turn it around: have those who are worried about project costs asked themselves what each day's delay in rehabilitation means (in money and pain) to the project-affected people?