Philippe Cullet

Economic and Political Weekly

5 May 2001, p. 1503

Sardar Sarovar Judgment and Human Rights

The Narmada judgment is an extremely important decision for a variety of   reasons. The human rights dimension is one of its fundamental aspects. Indeed, the majority judgment which concluded that the project could go ahead   specifically acknowledged that it was entertaining the petition of the Narmada Bachao Andolan only because it was concerned about the situation of displaced people in the Narmada Valley.

This is one of the most important lessons of the judgment. Displaced people’s right to life including the right to live in a healthy environment, right to a house or right to food are very important considerations in the eyes of the Supreme Court. Given this stand, it is worth examining in more detail how the court finally arrives at the conclusion that displaced people, especially the adivasis among them, are being actually helped by the state since their displacement will provide an opportunity to uplift them from their present living conditions.

As noted, in the court’s words the judgment is fundamentally about the human rights of displaced people. In practice, however, human rights are given surprisingly little place in the arguments of the court. The majority judgment refers to the right to life and to the International Labour Convention 107 which protects the rights of tribal people. However, rather than providing a full reasoned analysis of the human rights situation, the judgment focuses on the various administrative procedures put in place by the state to deal with the various issues arising from the Sardar Sarovar Project (SSP). This is rather surprising. Even if we assume for the moment that domestic law is underdeveloped with regard to eviction, displacement and rehabilitation, there was substantial guidance from the international level to help the court in reaching a decision.

First, the court refuses to confront the Morse Report commissioned by the World Bank in the early 1990s. This report was certainly not well received by the bank and the government given that it was extremely critical of SSP, but it has nevertheless been of major significance in the history of SSP. Indeed, it constituted the direct trigger for the World Bank’s eventual withdrawal from the project.

While referring to the World Bank, two other elements must be noted. First, even though SSP has nothing to do with the bank at present, it is significant that the bank’s own proposed new resettlement policy starts with an acknowledgement that involuntary resettlement can cause “severe long-term hardship, impoverishment, and environmental damage unless appropriate measures are carefully planned and carried out”. Therefore, the first objective of the bank is that displacement is to be avoided where feasible or otherwise minimised. Second, SSP has already had significant impacts on the World Bank. Not only is SSP the first case where the bank has had to withdraw from a project that was still being implemented but it has even devised a new institutional mechanism ­ the Inspection Panel ­ to examine human rights violations in bank projects. The decisions that the panel has taken are quite relevant for SSP given that some dealt with projects of a similar nature. In particular, the panel submitted a report concerning a hydroelectric project on the border of Argentina and Paraguay. In this case, it was acknowledged that because standards with regard to resettlement and environmental protection had been greatly strengthened since the beginning of the project, the World Bank had progressively modified and strengthened its requirements in these two areas. In the case of SSP where the project has been in the making for about 40 years, the Inspection Panel report could have provided useful guidance in dealing with the problem of the applicable legal framework. Indeed, the judgment is very hesitant on this count. While it insists on the one hand on the sanctity of the 1979 Tribunal Award, it does condone some changes in the award (for instance, the Gujarat government changes in the definition of oustees) and also selectively recognises the applicability of laws adopted after this decision (for instance, the Forest Act, 1980) while denying the relevance of others (for instance, the Environmental Impact Assessment Notification, 1994).


UN Human Rights Standards

India has ratified a number of human rights treaties, most of which could have found application in this case. While most treaties provide only very general guidance since their provisions are quite broad, the UN has recognised the importance of the question of involuntary displacement and discussed it in different contexts. First, the committee which monitors the implementation of the covenant on economic, social and cultural rights to which India is a party has indicated in its authoritative interpretation of the right to housing that forced evictions which are incompatible with the right to housing occur, for instance, if procedural guarantees, such as genuine consultation with project affected people, are not offered. There have been striking lapses in this regard in the history of SSP. Thus, the 1979 Award whose importance was reiterated by the court was exclusively a matter among states without any participation of affected people. Again, this is partly due to the fact that the project was conceived at a time when participation was not necessarily widely accepted as a human right. However, since the project remains unfinished, the law as it stands today should be applied.

In the context of the UN human rights commission, a set of non-binding principles concerning internal displacement have also been adopted. These shed light on the obligations of states with regard to their citizens. They highlight, for instance, that governments should firstly examine all feasible alternatives which could avoid displacement altogether. They also indicate that the process of displacement itself should not violate the rights to life, dignity, liberty and security of those affected.

The judges did not consider the specific standards set up in the context of the United Nations concerning displacement. They also failed to consider the recommendations of the report of the World Commission on Dams (WCD). It is true that this report was released a month after the judgment and that in any case it would not have constituted a binding precedent for the court. However, it carries considerable weight given that it reflects an international consensus among all the main players in the context of dam building, from staunch opponents to companies building dams.

The interest of the report resides in the fact that it provides rather specific statements on ways to implement large dam projects without jeopardising human rights and environmental quality. A number of the recommendations of the report read as if they had been drafted with SSP in mind. The WCD makes important suggestions concerning the decision-making process leading to the building of dams. It suggests that decisions should be based on a series of fundamental criteria: equity, efficiency, participatory decision-making, sustainability and accountability. It goes further to suggest that according to the case studies accumulated, it is never to late to improve outcomes, even when the project is already underdevelopment. Finally, in the set of guidelines for good practice that are provided at the end of the report, the WCD proposes the establishment of independent review panels for all dam projects to review the assessment of impacts and the planning, design and implementation of social and environmental mitigation plans.

Even though the recommendations of the WCD are strikingly relevant for the case of SSP, no mention is made of the WCD process or the India case study report which was available before the judgment was brought out.

As noted, even if domestic law did not offer the appropriate kind of guidance for taking a decision in the SSP case, international legal and policy documents offer ample material on which the judges could have drawn. In reality, readers of the judgment find that the human rights of displaced people are not given much importance. Thus, not only is the Morse Report rejected by the court, but the problems highlighted in this report are not addressed elsewhere in the judgment.


Oustees’ Participation

One of the dimensions that has been left aside in the majority judgment is the question of participation by oustees in the development of the project, or at least in the planning of their resettlement. The right to participate in decision-making is today accepted everywhere and is, for instance, reflected in the policies of the World Bank. The court seems to take for granted that oustees have been consulted even though the proceedings of the tribunal which decided in 1979 the conditions for their resettlement never took their views into account. Instead, the majority judgment takes the view that “it is not fair that tribals and the people in undeveloped villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life”. In other words, the state is making tribal people a favour by displacing them. The consequence seems to be that participation is not necessary since the oustees will in any case be much better off after displacement. The World Bank draft policy on resettlement recognises much more cautiously that displacement can be a traumatic experience and that significant efforts must be made to ensure that displaced people do not adversely suffer and do not lose out on the whole.

The overall picture given by the judgment is that the human rights of oustees are given short shrift. The issue should never be seen in terms of the ‘cost’ they pay for the improved welfare of their fellow citizens. Displacement may be unavoidable in some circumstances but in no case can it be framed only in terms of a ‘human cost’ of the development process. As agreed under both international and domestic law, everyone is at all times entitled to basic human rights and the people from whom an immense sacrifice is demanded in the name of the improved welfare of their fellow citizens are certainly not beyond the reach of human rights. The judgment delivered last October does not seem to recognise this.

Even though the judges are overtly mainly concerned about the rights of oustees, they also dwell at length on the question of environmental clearance for the project. It is worth comparing the treatment mooted to international human rights and international environmental norms. In fact, the case of environmental law is even more striking.

In recent years, not only has the Supreme Court given a number of ‘green’ decisions but it has also been an ardent supporter of the incorporation of international environmental law into domestic law. Indeed, five years ago Justice Kuldip Singh, in a landmark decision, indicated that the principle of precaution first developed in international environmental law ­ a principle according to which action should be taken to minimise environmental damage even in the absence of full scientific certainty ­ was part of Indian law even though it had not been specifically incorporated.

The principle of precaution finds a number of specific applications. For instance, the idea to require an ‘environmental impact assessment’ before authorising certain types of projects is in itself a specific application of the principle of precaution. This is, for instance, confirmed by Justice Weeramantry of the United Nations International Court of Justice (ICJ) in a case concerning a dam between Hungary and Slovakia.

Despite this clear lineage between precaution and impact assessment, the majority judgment declares that the principle of precaution is not applicable in the case of non-polluting industries such as dams. It is surprising that the judges should come to such a conclusion. Even if they were not ready to accept Judge Weeramantry’s interpretation, domestic law gives exactly the same answer. Indeed, the Environmental Impact Assessment Notification of 1994 applies indiscriminately to various types of projects, polluting or non-polluting as per the classification of the court.

All this may leave some to ponder what use there is for any international law if it can be so easily applied one day and forgotten the next. A more positive way to look at it is to recognise that progressively, however slowly, the commitments that India is taking at the international level are being considered as an important part of domestic law not only if they refer to WTO agreements but also if they refer to human rights or environmental protection. In this sense, the Narmada judgment, despite being a direct blow to the human rights of oustees, participates of a longer trend towards the recognition of the importance and unavoidability of human rights.