Narmada Bachao Andolan V

Narmada Bachao Andolan v.
Union of India AIR 2000 SC 3751
Introduction
The Narmada Bachao Andolan case took the human rights and civil liberties observers of the
Apex Court by surprise. The Court, for perhaps the first time in such a major decision,
decided to embrace the State’s agenda to carry on with a major infrastructure project which
would result in displacement of thousands of people.
Facts
Narmada is the fifth largest river in India and largest West flowing river of the Indian
Peninsula. Sardar Sarovar Dam was constructed on Narmada River that runs in four States
(Gujarat, Madhya Pradesh, Maharashtra and Rajasthan) in India starting in 1987. The NBA is
a social movement that is spearheaded by Medha Patkar, who has campaigned vociferously
against the damming of the Narmada. The social and environmental costs of the dam far
outweigh the benefits, is their long-standing claim. In April 1994, Narmada Bachao Andolan
filed a writ petition inter alia praying that the Union of India and other respondents should be
restrained from proceeding with the construction of the dam and they should be ordered to
open the aforesaid sluices. Narmada Bachao Andolan cited displacement and rehabilitation
problem that the project would cause. It called for further study as well as postponement of
construction pending completion of such study. It has also argued for reduction in the height
of the dam so as to reduce the extent of submergence and the consequent displacement.
Arguments
It was submitted that the forcible displacement of tribal and other marginal farmers from their
land and other sources of livelihood for a project which was not in the national or public
interest was a violation of their fundamental rights under Article 21 of the Constitution of
India read with ILO Convention 107 to which India is a signatory. Elaborating this
contention, it was submitted that this Court had held in a large number of cases that
international treaties and covenants could be read into the domestic law of the country and
could be used by the courts to elucidate the interpretation of fundamental rights guaranteed
by the Constitution. In this connection, attention was drawn to the ILO Convention 107
which stipulated that tribal populations shall not be removed from their lands without their
free consent from their habitual territories except in accordance with national laws and
regulations for reasons relating to national security or in the interest of national economic
development. It was further stated that the said Convention provided that in such cases where
removal of this population is necessary as an exceptional measure, they shall be provided
with lands of quality at least equal to that of lands previously occupied by them.
Decision
The apex court held that right to water is a fundamental right under article 21 of the
Constitution. Water is the basic need for the survival of human beings and is part of right of
life and human rights as enshrined in article 21 of the Constitution of India and can be served
only by providing source of water where there is none. In this case the Water Disputes
Tribunal had in its award come to the conclusion that the height of the dam should be 455
feet. The Court held that once the award becomes binding on the State, it would not be open
to the third party like the petitioners to challenge the correctness thereof. The displacement of
tribals on account of construction of Sardar Sarovar Dam up to the height of 455 feet was
held valid and not violative of article 21 of the Constitution in view of the relief and
rehabilitation measures provided in the Water Dispute Tribunal award.
The court decided that 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 decided to allow the project to be completed.
Analysis
Supreme Court’s advocacy of the precautionary principle was not followed in this case.
Instead national interest was given the prime interest here. Dam’s construction resulting in
displacement of thousands of people was allowed for the greater common good.
The Court did note that there would be violations of Article 21 of the Constitution of India
and Convention 107 of the ILO on forcible or wrongful displacement of the project affected
persons. It takes an extended view of Article 21 of the Constitution of India and recognizes
and includes the right to rehabilitation in a just and equitable manner. This has been one of
the highlights of the case, that Article 21 has been recognized and held supreme in an
instance where the disadvantaged were in dire need of proper resettlement measures.
But on the Environmental issues, the Court said that dams play a vital role in providing
irrigation for food security, domestic and industrial water supply, hydroelectric power and
keeping flood waters back. It also asserts that the displacement of persons need not per se
result in the violation of their fundamental or other rights.
Precautionary principle was not applied by the apex court here at it was said that a dam is
not expected to pollute. In the majority judgment, the application of the principle of
precautionary principle was rejected. They went on to say:
In the present case we are not concerned with the polluting industry which is being
established. What is being constructed is a large dam. The dam is neither a nuclear
establishment nor a polluting industry. The construction of a dam undoubtedly would result
in the change of environment but it will not be correct to presume that the construction of a
large dam like the Sardar Sarovar will result in ecological disaster. India has an experience of
over 40 years in the construction of dams. The experience does not show that construction of
a large dam is not cost effective or leads to ecological or environmental degradation. On the
contrary there has been ecological up gradation with the construction of large dams. The
impact on environment with the construction of a dam is well-known in India.
The locus standi of petitioners was questioned by the court and the PIL was taken as a tactic
to stall the project and it was said that PILs had been used for private inquisitiveness.
Conclusion
This case gave the govt. a justification for future large infrastructural projects as the court
was not concerned here with change of ecological balance and environment due to a large
dam. With regards to the Sardar Sarovar Project, further litigation brought relief and
rehabilitation measures to greater and stricter scrutiny, however the project was delayed and
finally the first phase of the project became operational in June 2006. Its height stayed at 453
feet and has an active capacity of 5,800,000,000 cubic meters. 70000 people were displaced
and resettled, mostly in Gujarat.

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Narmada Bachao Andolan v.

Union of India AIR 2000 SC 3751

The court decided to allow the project to be completed.

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