Courts & politics of development — II

THE SUPREME Court's verdict on the SSP has proved to be unrealistic, as the conditions stipulated therein about rehabilitation and environmental mitigation remain, till date, non-feasible. There is no land to rehabilitate the 40,000 and more recognised families and no plans for almost an equal number of non-recognised project-affected families. Even a few thousand oustees of the SSP below the present height of 90 meters are not fully resettled according to the provisions of the Tribunal. The State Governments have no cultivable land ready to be allotted. Now, appallingly, the submergence area has increased by thousands of hectares and so has the number of affected families. The Government admitted that, "the earlier estimates of submergence were done by drawing the lines on village maps".

The Governments are planning to take up the height to 95 or100 meters, without complying with the Narmada Water Dispute Tribunal's (NWDT) rehabilitation provisions or the Court order. The Government of Madhya Pradesh has proposed to `amend' the NWDT award itself, in order to introduce cash compensation in place of land-based rehabilitation, because the Governments have found such land-based rehabilitation impossible. For that, they are seeking to change the `law' itself, which they had claimed to be sacrosanct, unchangeable and to which the Court too had agreed. Much remains to be completed on the environmental front — catchment area treatment, command area development, compensatory afforestation, siltation, impacts on health and investigation in archaeological remains etc. State officials are feeding monitoring and decision-making bodies with false data and farcical reports. All this after paying enormous human, environmental and financial costs — which would be not less than Rs. 40,000 crores. Worse, the drought-affected areas at the tail end will be left high and dry. For all this, the thickly populated villages, bustling with life, are asked to queue up for submergence, that is, sacrifice.

The States concerned have committed flagrant violations of the Court order, as the rehabilitation according to the NWDT was not complete. Hence, the work on the dam has to remain stayed. But, it is now being pushed through unrealistic claims and political rhetoric. A game, bordering on a heinous crime, is being played with the people's lives and the ecosystem. All this has been made public and the Narmada Bachao Andolan (NBA) has time and again drawn attention to it. The Supreme Court could have taken suo motu cognisance of the gross violation of its own order, which is, in effect, a glaring contempt. The party that commits true contempt is the one that violates a court order, not the one that criticises it. The Court did not take cognisance of the earlier violations of its rulings regarding the resettlement and submergence by all the Governments concerned, despite the NBA's repeated attempts to point them out.

But when a writer makes a political comment about the role of the Judiciary involving the rights of the victimised people, she is compelled to explain her writings. Are our courts apprehensive of going into the entire game of development, its policies and projects, which have been trampling upon the right to life and resources of the common people of this country? The courts cannot escape from this responsibility with the excuse of "non-interference in the executive decisions". The courts have a constitutional power and responsibility of Judicial Review, enshrined in Article 32 of the Constitution. And, they have used this power to examine the Executive's decisions in the past, as in closing down the industries in Delhi or Ankleshwar, Gujarat. The higher judiciary has refused to go into the charges against Cogentrix and Enron and the alleged crimes of Union Carbide. It has given a `policy' verdict not to hold hartal/morchas in `public places', it also gave the nod to anti-labour reforms and it had pulled up the striking municipal workers in Mumbai. The Court also decided against reservation for Dalits in "super special classes". It legitimised the displacement of people for the sake of a project in the Narmada Valley, which is economically and financially non-feasible.

So, the Judiciary in India does make choices, deciding when to "examine the Executive's decision" and when not to. It also uses the weapon of contempt selectively, not taking up the violations of orders by the Governments in the Narmada Valley, but chooses to "haul up" Ms. Roy. It also attempts to ignore the VHP's arrogance challenging the system per se and does not put any one of the Singhals or Sants behind bars. It does, however, in the case of a writer trying to protect human rights and demanding the same from judges and the system they are part of. This is a sad commentary on our democracy, fundamental rights and freedom of speech granted to citizens and on the increasingly shrinking political space for the people.

Judicial activism is expected to further the aspirations of the Constitution. What is witnessed in many a situation, however, is judicial activism of a retrograde and dangerous kind — marginalising the grave issues regarding the violation of the oppressed people's rights by the power-holders. The latest interim judgement on "pooja" on the disputed and undisputed land in Ayodhya gives us some hope.

The criticism of the Judiciary by the NBA, Ms. Roy and other freedom-asserting artists and activists is basically different from the likes of the VHP. Those who reject the rule of law, Constitution and Courts per se in the name of religion belong to a different category from those who have a faith in the secular, democratic institutions that they petition, appeal to and even criticise. It is high time the agenda and ideology of our Judiciary are discussed openly and frankly. A robust and confident constitutional democracy would not stifle the debate about the Courts' role under the pretext of contempt of court.

With the increasing bane of consumerism and vicious communalism, there is a need as much to rally around to save democracy and the rights of common people, as the secular traditions, more than ever. More than a strong and stable state, we should strive for a sensitive and sensible state. The people not only from the Narmada Valley but all those fighting the battles for survival, for peace and dignity and for democracy, must raise a voice in support of alternative voices such as Ms. Roy. If it is not now, when will it be?


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