Judgement and after

The Hindu
Sunday November 26, 2000

There have been exceptions when the legal system has meted out justice without regard for the position of the parties concerned. Unfortunately, even these instances are diminishing rapidly in the face of globalisation, says ANAND PATWARDAN, commenting on the Narmada project. 

THE 18th of October 2000 will go down as a day of infamy for the Supreme Court, but if wisdom prevails over passion, it could mark the beginning of a new phase for a nascent green-left movement in the country.

In an astonishing 2:1 split decision, the Supreme Court ruled that work on the Sardar Sarovar dam could resume despite the fact that there is little sign of alternative land being available for those displaced by the dam. Indeed in the six years that the matter was argued in court, the mountain of evidence painstakingly collected by the Narmada Bachao Andolan (NBA) should have proved beyond doubt that the dam project represents costs that are unacceptable in both financial and human terms.

The facts scream out at anyone who is interested in even a cursory appraisal. When the project was first approved, it was claimed that there would be a 2:1 ratio of benefits as opposed to costs. At this first stage of claim making, the dam and its irrigation canals were estimated to cost Rs. 4,600 crores. By 1988 this was revised to Rs. 6,400 crores. Today, the official estimated cost (which leaves out of reckoning all that is inconvenient) of the project has increased to Rs. 18,000 crores. Have the benefits increased in similar fashion? Not even the greatest proponents of the project dare to claim this. In fact it has been shown that the amount of water available in the river has decreased due to siltation and so, if anything, the estimated benefits need to be downwardly revised. So it turns out that the cost-benefit ratio, that very essential piece of arithmetic that must precede the sanction for any development scheme, is completely skewed in favour of costs rather than benefits. Never mind the additional circumstances that the benefits largely accrue to an already well-off section of society (big farmers, industrialists and urban entrepreneurs for whom every artificial lake is an opportunity for water sports and holiday resorts) while the costs are borne by the weakest sections.

The Narmada project was conceived in the 1960s when large dams were seen as temples of modernity, necessary for kick-starting a nation’s progress towards industrialisation and prosperity. By the 1980s, negative aspects of large dams in many parts of the world began to be documented – the fact that siltation drastically reduces the life span of such dams; the often insurmountable problem of rehabilitating oustees; the submergence of natural forests which can never be suitably replaced by monocultural afforestation, and the innumerable issues that those who author major changes to nature’s design never seem to consider, to the detriment of the generations that follow.

Two decades on, in the first year of the new century, there is virtual international consensus that large dams must be rethought. Not so, say two of the learned judges of the Supreme Court. “The petitioner has not been able to point out a single instance where the construction of a dam has, on the whole, had an adverse environmental impact”.

Which world do they live in? Even if NBA lawyers concentrated on the terms of reference allowed to them by the court and argued mainly on the issue of rehabilitation and the non-availability of alternate land, national and international literature is hardly silent on the issue of the environmental hazards of large dams.

What can the NBA do now? In a sense, having appealed to the courts in the first place, it would appear to be morally bound to accept the judgment and allow work on the dam to resume without further opposition. After all, had the judgment gone in its favour and the project scrapped, would it not have demanded compliance from the relevant authorities? This is an appealing argument to all those who believe that we already live in a democracy where there are equal opportunities for all, where the weak and the strong are truly equal in the eyes of the law, and that this case too was fought on a level playing field. It is not as if the rich and the powerful have always benefited from our legal system, that rich murderers have invariably got away scot free where the less powerful might have hung. It may be the rule but there are exceptions when the justice system of this land has actually meted out justice without regard for the position of the parties concerned. Unfortunately, even these exceptional instances are diminishing rapidly in the face of globalisation.

The Bhopal gas case, where Union Carbide was let off with pitiful penalties, and the Enron case, where corruption was condoned and even rewarded, are two cases where highly paid lawyers and political pressures combined to engender patently unjust judgments with epochal repercussions.

So should we still pretend that all is well? Should the lack of study or the lack of courage of a few people be reason for irreversible measures that hurt the fabric of our system? Will citizens of this nation who rise up and say: “We do not trust your judgment your lordships” be hauled up for contempt? And what of the contempt shown by the court towards the poorest of this land and to those who champion their cause?

This sounds like sedition. Like a call to arms, except that the leadership of the NBA does not believe in armed struggle. The NBA has fought by putting its own life on the line, not by endangering the lives of others. For six years it put its faith in the justice system of this land. Today that system has failed.

With all legal avenues closed, in the months to come, the cry of “Jal Samarpan” (sacrifice by drowning) is bound to ring out once more. Already the valley is preparing itself for sacrifice. Already activists and their supporters can be heard saying that there is no alternative. Already the media is once more poised, like vultures hoping for the worst, so it has a good story. And if this time the worst does come to pass and we lose the best this land has to offer in terms of courage and humanity, who will have gained?

Will this land be shamed into dismantling its unjust system of privilege and denial? Will future generations remember the martyrdom and carry on the fight? Did Mahatma Gandhi’s martyrdom bring about the society he dreamed of? Did Che Guevara spark the Revolution he lived and died for? At best they became icons whose posters are as ubiquitous as their ideals stay unimplemented.

If Prabhakaran can inspire so many to become human bombs, it is easy to see how people can be inspired to take their own lives without the guilt of killing others. But sacrifice is something we can admire the courage of, without admiring its wisdom. However glorious it may be, death is still escape. It is harder to live for a cause than to die for it, to continue the fight despite the humiliation of innumerable defeats.

So rise up people of the Narmada and all those who believe in a just, humane and sustainable world. Remove your heads from the chopping block that your enemies and some of your well-wishers have prepared. Regroup and rethink. Why did the courts not give us justice? Because we do not live in a true democracy. Martyrdom will not bring about this democracy. Hard work amongst the people will. Why did the courts not give us justice? Because we did not have the political power our opponents had.

The lesson cannot be clearer, nor the choice.