M J Antony: Big projects, small people

OUT OF COURT

There was a time when big projects like dams and thermal generation plants could be built riding roughshod over the lives of tribal and village communities.

Relief and rehabilitation (RR) schemes were half hearted. Four decades after Bhakra-Nangal, many displaced people were found to be wandering as mendicants.

But over the years, attitudes have changed. Non-government organisations (NGOs), with the affirmative assistance of the judiciary, have intervened to bring social justice to such disaffected people.

Last week's order of the Supreme Court in Narmada Bachao Andolan vs Union of India is hopefully the culmination of a long litigative saga regarding RR of people displaced by the Sardar Sarovar Project.

It involved the Centre and four states benefiting from the scheme.

The original plan had not fully taken into account the rehabilitation, livelihood and the right to life of the displaced people. Therefore, a public interest litigation was moved in the Supreme Court.

In 2000, the constitution bench of the court delivered its main judgement allowing the height of the dam to be raised after fulfilling the conditions regarding RR.

The present petition was moved on behalf of those who were aggrieved by the interpretation given by the Madhya Pradesh government to the earlier judgement and wanted further clarification of that decision.

The rehabilitation package offered by MP was so miserly that the displaced people started migrating to Gujarat where the offers were liberal.

The present order developed certain principles already set in the earlier judgement regarding RR and they could be a model for future mega-projects.

RR, said the court, should be implemented at the same rate as the raising of the height of the dam. In fact, the rehabilitation should be completed one year before the submergence of the habitat of the villagers.

There should not be any distinction in treatment between "permanently-affected" families and "temporarily-affected" families, as the MP government set out to do, in order to reduce its liabilities. Every adult son should be given land. (Gujarat compensated even unmarried daughters).

On the other hand, the displaced people cannot normally reject the alternative land offered by the state unless it is shown that the land is not irrigable, cultivable or otherwise unsuitable. The oustees have no right to be relocated as a community.

The court had earlier dealt with two major projects in a similar manner, but not gone into the details. In 2003, it delivered its judgement in the Tehri dam controversy in N D Jayal vs Union of India.

After hearing the case for several years and examining reports on different aspects of safety and rehabilitation projects, the court ultimately allowed the project but set tough conditions for the construction of the dam.

The earliest such case perhaps was Banwasi Seva Ashram vs State of UP (1986). The Centre declared the forests in Mirzapur district in UP as "reserved", although the tribal people had been living and cultivating crops there for ages.

It then allowed the National Thermal Power Corporation (NTPC) to set up a thermal power plant there. A large number of tribal people had to be evacuated and a PIL on their behalf was moved in the Supreme Court.

While the court allowed the setting up of the plant, it ensured the rehabilitation of the displaced people and compensation to them.

It directed the NTPC to operate self-generating schemes for their benefit and that it shall provide good roads, drainage system, water supply, schools, health centres, electricity and toilet facilities.

These judgements have now set the norm for displacing people for giant projects.

These days when the judiciary is alleged to be stepping on the toes of the legislature and the executive, there might be doubts about whether the courts have the power to pass such orders touching upon the government policy.

The courts, in fact, invoke Article 21 that deals with the fundamental right to life and liberty. The state or anyone else cannot violate them and the court has a duty to enforce these rights.

The state also cannot violate Article 14, which prohibits discrimination between classes of people. Therefore the courts are only doing what they ought to do.