Water politics: Narmada Bachao Andolan vs.

Union of India and others

In 2000, the Indian Supreme Court made a decision that would allow “progress” to plunder and pillage
the homes of the indigenous populations in India1.

The decision was carefully deliberated upon and a myriad of factors were used by the Court to come to
its conclusion. Among the chief factor, as this article suggests, is the idea that “green projects,” such as
hydroelectric power helps society in a beneficial way.

Although this theory is partially correct, there are devastating consequences to energy projects that do
not take into account the rights and well-being of the people.

This article focuses on the controversial the Narmada decision and the impact that it has had on the
human rights of the indigenous populations since 2000.

HISTORY

In the late 1940’s, shortly after India declared independence, government authorities began
investigating potential uses of the Narmada River2, the fifth largest river in India3.

A Commission study concluded in 1955 that the Narmada Basin had, “hydroelectric potential4.”
In 1961, Pandit Jawaharlal Nehru5 inaugurated the Narmada Project and construction began
under the direction of the newly formed Gujarat state government6.

The largest and most contentious among the thirty dams planned to be built along the Narmada
by the Indian government, was the Sardar Sarovar dam7.

Starting in the late 1960’s, the Sardar Sarovar Project (SSP) was the central problem between
the states of Gujurat, Madhya Pradesh, and Maharastra over the, “use, distribution, and control of
the waters.”

8 As a result of this dispute, the Supreme Court of India created the Narmada Water Disputes
Tribunal (NWDT) to settle conflicting claims of the states over sharing the river water, cost of
rehabilitating displaced people, and the height of the dam.9

The SSP is now operated as a, “multipurpose, interstate,” project being implemented by the
governments of Gujarat, Maharashtra, Madhya Pradesh, and Rajasthan.10

In 1978 India solicited the World Bank for a loan to finance the Narmada project.11

In response, the World Bank sent out a team of inspectors to visit the project site12and in 1985
the Bank approved four hundred and fifty million-dollars in loans for the project.13
Two years later, the Indian Ministry of Environment and Forests authorized clearance for
construction under certain conditions.14 Among those conditions were, “detailed
surveys/studies,” completed field surveys, and rehabilitation plans to be drawn out ahead of
reservoir filling.15

Construction of the dam began in 1987 and a human rights catastrophe was created.16

Narmada Bachao Andolan AND PEOPLE’S MOVEMENT

The Narmada Bachao Andolan (NBA) was founded in 1986 and is a movement formed in the
states that are affected by hydro power development.17

The Narmada Bachao Andolan, through a series of protests and non violent strategies, brought
international attention to the SSP.18

As a result of the Narmada Bachao Andolan’s protests the World Bank quickly started to pay
attention to the SSP19 and began to investigate the impact of the SSP beginning in 1991.20

The World Bank set up an Independent Review Panel (IRP) which was given a twofold mandate;
to assess the measures taken to “resettle and rehabilitate” people who were affected by the
project and to “evaluate measures” designed to ameliorate the impact of the dam on the
environment.21

The IRP found a history of non-compliance with the conditions set forth in the loan agreements
with the Bank, and that “no proper data and assessments” had been created to allow the IRP to
develop “effective ameliorative measures.”22The IRP concluded, “unless a project can be
carried out in accordance with existing norms of human rights and environmental protection,
norms espoused and endorsed by both the World Bank and borrower countries [should] not to
proceed.”23As a result of the investigation, in 1993 the Board heeded the assessments and
withdrew from the project.24However, the Indian government continued with construction.

In 1994 the Narmada Bachao Andolan petitioned the Supreme Court of India for relief.25The
petitioners sought the Court’s guidance for, “some independent judicial authority to review the
entire project, and examine the current best estimates of all costs (social, environmental,
financial), benefits and alternatives in order to determine whether the project is required in its
present form in the national interest or whether it needs to be restructured or modified.”26The
Narmada Bachao Andolan requested a “comprehensive review of the project” and an injunction
to prevent further construction until the review was completed.27

THE DECISION

In 2000, the Court cleared construction for the Narmada project to continue. The main legal basis
of the judgment was premised on the doctrine of latches.28The Court, in its majority opinion,
articulated that while the “anti-dam” organization had been in existence since 1986, “it [chose] to
challenge29 the clearance given in 1987 by filing a writ petition in 1994.”30The Court stated that
the Narmada Bachao Andolan has been “agitating” against construction of the dam since 1986,
but that “having failed in its attempt to stall the project the petitioner has resorted to court
proceedings by filling this writ long after environmental clearance was given and construction
started.”31The majority opined, “this Court has entertained this petition with a view to satisfy
itself that there is proper implementation of the relief and rehabilitation measures.” The Court
had only “entertained” the petition because of the Court’s concern for the “protection of
fundamental rights of the oustees.”32

The doctrine of latches, similar to that of the statute of limitations in the United States, allows for
finality in decisions and claims to be brought. The Court held “it is against the national interest
and contrary to 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 execution of the project.”33 Prior to this decision, the Court has overruled latches
before to accommodate humanitarian emergencies.34

A closer examination of Article 32 of the Indian Constitution reveals that the Supreme Court has
the broad power to issue writs, petitions, or whatever tool may be appropriate to enforce
fundamental rights.35 The Article also guarantees that one may petition the Court to enforce
these rights.36With such sweeping power to enforce rights, the Court should have offered a
better reason to deny petitioners their claim, especially because of the catastrophe that has been
created because of inadequate rehabilitation. The Court once espoused,

“Fundamental Rights, contained in Part III of the Constitution of India, represent the basic
human rights possessed by every human being in this world inhabited by people of different
continents, countries, castes, colours and religions. The country, the colour and the religion may
have divided them into different groups but as human beings, they are all one and possess the
same rights.” ((Kaur v. State of Punjab, 1998 SOL Case No. 524))

All parties in this matter failed to also recognize relevant protections under two large
international treaties. In 1979 India ratified both the International Covenant on Civil and Political
Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights
(ICESCR).37These treaties both embody the principles set forth in the Universal Declaration of
Human Rights, which is the framework the World Commission on Dams used for its report on
the utility and use of dams.38

The ICESCR protects the right to adequate housing. The right to adequate housing encompasses
the right to security of tenure; essential services such as water, sanitation; affordability; access to
means of livelihood; protected from forced eviction; community identity; non-discrimination;
protection from arbitrariness.39The U.N. Commission on Economic, Social, and Cultural Rights
has stated that evictions should not result in rendering people homeless or vulnerable to
violations of other human rights.40International treaty obligations aside, the World Bank’s loan
policies obligate India to protect human rights under the “Involuntary Resettlement Policy.”41

Perhaps the application of the ICCPR, ICESCR, and Involuntary Resettlement Policy, would
have provided for a fair evaluation of rights in this situation given India’s treaty obligations.

FAST FORWARD: THE FUTURE

Twelve years after the controversial decision was handed down by the Indian Supreme Court
there are situations that continue to highlight the impact of the Court’s decision on the people
who are affected by these development projects. Some of these impacts include ineffective
resettlement packages that are offered to those who are displaced, the abolition of protections for
tribal peoples, and the annihilation of the indigenous tribes who lived along the Narmada and
sustain themselves on the Narmada.

Corruption among state governments and within the rehabilitation process is festering and
rampant. After the 2000 decision, less than a month later, corruption started becoming exposed
on all levels of government.42 As recently as of August 2008 the Madhya Pradesh High Court
ordered the State of Madhya Pradesh to properly rehabilitate approximately 974 houses of 46
villages which were arbitrarily left off the list to be compensated and rehabilitated.43The Court
followed up its decision with a recent ruling to inspect the fake rehabilitation registries and
potential money laundering.44In the twenty five years of “development” this is one of multiple
incidences that the people have requested Courts to intervene.45

The 2000 decision has also destroyed tribal self-governance policies put into place on a national
level. The Tribal Self Rule Law is codified in the Indian Constitution under Article 342.46The
amendment gives the 532 scheduled tribes in India the right to self governance because of
special customs and lifestyles that are distinct from general agrarian communities throughout
India.47The State of Madhya Pradesh, one of the key states as mentioned above in the
development of the SSP, has the largest tribal population in the country.48The Tribal Self Rule
Law calls for “consultation before land acquisition for development projects and before resettling
or rehabilitating persons affected by such projects.”49It is evident that “forest based resources
are one of the most significant resource for tribal people in India.”50Among the people who
actually make it on to the list and receive land, the land is generally found to be inadequate and
uncultivable.51Water release schedules from the dam have made agriculture a thing of the past
and unemployment a state of the future.52It is evident that the Indian government, the Court, and
other parties affiliated with the SSP and other dam projects throughout India have neglected to
follow the law with regards to the Tribal Self Rule Law. It is evident from projects such as the
SSP that even amendments to the Indian Constitution have no bearing with regards to people’s
right or liberties.

In March 2008, the Supreme Court of India was called upon again to take action with regards to
the rehabilitation and resettlement packages.53Struggling to find resolution, the Narmada
Bachao Andolan continues to garner domestic and international attention with non-violent
protests and legal claims in order to make their voices heard.54

Of course, the most obvious issue that this decision has created is the enormous human rights
violations that continue to occur in the status quo. In April 2005, many oustees died when the
Government released water from the dams, causing floods to sweep people in to the waters of the
Narmada.55In 2008, thousands had been evacuated because of water breaches in the water
carrying canal of the SSP.56As of 2012, the bells rang again, as the alerts went off warning low
laying villages to evacuate the areas because the rise in water levels were set to be
broken.57While many are without homes, food, and work; there are those that continue to suffer
at an enormous expense because of development. Not surprisingly, this past summer,
Government authorities came “down heavily” on farmers who were using water to irrigate their
lands, because there was a water shortage.58Tragically the overflowing dam is being seen as
nothing more than a “tourist” spectacle, instead of a humanitarian catastrophe.59

The controversy regarding the Narmada did not die in 2000. In the most recent civil appeals
decision that was decided in 2011, the Court dealt another blow to the Narmada Bachao
Andolan. The Narmada Bachao Andolan challenged another project along the Narmada River,
the Omkareshwar Dam.60The petition alleged that the rehabilitation policies were not adequately
meeting the needs of the displaced people. The Court responded by notifying the Narmada
Bachao Andolan that in this particular instance that they did not plead with particularity the
claims they were bringing before the Court. “Pleadings and particulars are required to enable
court to decide the rights of the parties at trial.”61The Court then made its favorite argument,
once again accusing the Narmada Bachao Andolan of delay and violating laches
doctrine.62While the Court did acknowledge the importance of tribal rights, it merely reiterated
the fact that individuals can file their grievances, but generalized petitions do not allow the Court
to take action.63

India’s decision in Narmada Bachao Andolan foreshadows the coming of “water hegemony” that
India is asserting over others, even at the expense of its own people.64It is clear that international
law, domestic Constitutions, and even global treaties such as the Indus Waters Basin, will have
no affect if the world community does not step up to help the tribal people of India gain access to
their lands. The World Bank has even continued to cede to India’s request for developing
hydropower, despite the impact these projects have upon the people.65If the world community is
not careful to voice their opinions on these particular conditions, India’s “water hegemony”
could have serious implications for other populations near India.66 Although it has been twelve
years since the day the Supreme Court decided on the Narmada decision, the Narmada River has
continued to create a nightmare for those who live by the river. In September 2012, the Sardar
Sarovar overflowed, reaching its highest point since 2006.67In typical fashion, an “alert” was
issued asking residence to move to safer ground.68

In a region already full of potential nuclear strife, a fight over such a dwindling natural resource
could cause greater instability. “Build a dam to take water away from 40 million people. Build a
dam and pretend to bring water to 40 million people. Who are these gods that govern us? Is there
no limit to their powers?”69

REFERENCE

1. See Anjana Chatterji’s Op Ed “India Harsud Lost” in Asian Age, August 18, 2004,

where stories illustrate the magnitude of resettlement in the name of Narmada. [ ]

2. Narmada Bachao Andolan. v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000

p.1 [ ]

3. Id at 1 [ ]

4. Id at 2 [ ]
5. Nehru was the first prime minister of India. Under his direction, he encouraged the
development of science and technology, which lead to a sizeable growth in agricultural
and industrial production. “Jawaharlal Nehru (1889 – 1964) Biography”

ASIABIOGRAPHY [ ]
6. Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000

p.2 [ ]

7. Friends of the Naramda, “Sardar Sarovar [ ]

8. Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000

p.5 [ ]

9. Id at 5-6 [ ]
10. Habitat International Coalition, “The Impact of the 2002 Submergence on Housing and

Land Rights in the Narmada Valley” p.8 [ ]

11. Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000

p.12 [ ]

12. ID at 12 [ ]
13. Arundhati Roy, Power Politics,“The Reincarnation of Rumpelstilskin” (2001). 72-73 [

]
14. Narmada Bachao Andolan v. Union of India, Writ of Petition (C) No. 319 of 1994, 2000

p.12 [ ]

15. Id 12-13 [ ]

16. Id at 14 [ ]
17. Id. This group was formed by Medha Patkar and Baba Amte, who received awards for

their work. See also Friends of the River Narmada, a support group for the NBA [ ]

18. Id [ ]

19. Id [ ]
20. Id and Berger, Thomas “The World Bank’s Independent Review of India’s Sardar
Sarovar Project” American University Journal of International Law and Policy. (1993).

[ ]

21. Berger, p. 35. [ ]

22. Id at 43 [ ]
23. Id at 48 [ ]
24. “World Bank to cancel loan to Narmada Dam in India: EDF calls World Bank

environmental and social record dismal” Business Wire, March 30, 1993. [ ]
25. The 1994 Writ of Petition is what resulted in the 2000 Judgment by the Indian Supreme

Court. [ ]

26. Narmada Bachao Andolan v. Union of India, 2000 SOL Case No.319 of 1994 p.17 [
]

27. Id at 17 [ ]

28. Id at 18 [ ]
29. It should be noted that the NBA was proactive prior to the 1994 petition. The Court
mentioned earlier in its opinion that in 1990, Dr. B.D. Sharma wrote a letter to the Court
asking for rehabilitation of the oustees. The Court “entertained” and treated the writ

under article 32 of the Constitution being Writ Petition 1201 of 1990. (Id at 14). [ ]

30. Id at 18 [ ]

31. Id at 19 [ ]

32. Id at 19 [ ]

33. Id at 18-19 [ ]
34. In Kaur v. State of Punjab, the Court allowed the Commission to investigate human
rights abuses that took place in Punjab although the statute called for claims to be

brought within one year. [ ]

35. Indian Constitution Part III Article 32 subsection 2 [ ]

36. Id subsection 1 [ ]

37. Australian Commission on Human Rights, “Human Rights Explained“ [ ]

38. World Commission on Dams, p. xxxiii [ ]

39. Habitat International Coalition (HIC), “The Impact of the 2002 Submergence on

Housing and Land Rights in the Narmada Valley” p.6 [ ]

40. HIC at 6, quoting from General Comment 7; para 3 and 7 UN Commission on Economic

Social and Cultural Rights. [ ]

41. HIC at 7, quoting World Bank memo for Mr. Shhata to Joseph Wood (March 20, 1993)
OMS 2.33 Issued February 1980 discussing §6.06 of the General conditions applicable to

all World Bank loans [ ]

42. “No Land for Oustees: People Protest Against Unjust Submergence and Displacement.”

NBA Press Release, November 8, 2000. [ ]

43. “Madhya Pradesh High Court orders acquisition of 974 excluded houses: GRA confirms
that houses in Gov’t surveys were arbitrarily excluded.” NBA Press Release, August 7,

2008 [ ]
44. “Jabalpur High Court Gives Final Order on Case Regarding Corruption in Sardar

Sarovar Rehabilitation.” NBA Press Release, August 21, 2008. [ ]

45. “CBI Arrests Rehabilitation Officer for Narmada Projects Red-Handed accepting

Bribe.” NAB Press Release July 16, 2008. [ ]

46. Sanjay Upadhyay, “Tribal Self Rule Law and Common Property Resources in Scheduled

Areas of India: A new Paradigm Shift or Another Ineffective Stop?” August 2004 [ ]

47. Id [ ]

48. Id [ ]

49. Id [ ]

50. Id [ ]
51. Human Rights Experts Express Concern About Impact of Raising Height of Dam in

Narmada River, India” United Nations Press Release, April 13, 2006. [ ]
52. See generally Lyla Bavadam, “Narmada’s Revenge” Frontline Magazine, May 6, 2005.

Volume 22 Issue 09. [ ]

53. “Supreme Court Hears Sardar Sarovar Case” NBA Press Release, March 10, 2008 [

]
54. “Adivasi Applicant To Pursue Complaint with Appropriate Legal For Full Justice” NBA

Press Release, January 3, 2010 [ ]

55. Lyla Bavadam, “Narmada’s Revenge” Frontline Magazine,( May 6, 2005) Vol 22 Issue

09. [ ]

56. Thousands Evacuated” The Hindu, June 12, 2008 [ ]

57. The Times of India, “Flood Alert in 55 Villages Near Dam” (August 8, 2012), available [

]
58. Vadadora, “Narmada Dam Overflows Again” The Indian Express, (August 23, 2012), [

]
59. Vadadora, “Villagers throng Narmada dam site, land in through a Modi fare,” The

Indian Express, (August 12, 2012), [ ]

60. NBA v. State of MP, Civil Appeals No. 2115-2116 of 200, November 5, 2011 [ ]

61. Id at 9 [ ]

62. Id [ ]
63. Id. It should be noted that the Court also mentions that the rehabilitation policies had
been amended in 2003 to give agricultural land “as far as possible” and those who did
not file a petition to receive land would automatically receive settlement money in to their

accounts. Id at E. [ ]
64. Khalid Iqbal, “India’s Water Hegemony” (July 12, 2011), This situation is not only
unique to India, see Julie Trottier, “Water Wars: The Rise of a Hegemonic Concept” [

65. World Bank, “India’s Hydropower Development” (March 23, 2012), [ ]

66. See “India violating Indus Basin Treaty: PMKM” Pakistan Associate Press, July 12,

2011. [ ]
67. Harish Joshi, “Narmada Dam Overflow Highest in Seven Years” The Times of India,

(September 6, 2012), [ ]
68. Id, “alerts” are typically alarm bells that ring. See Shastri, Lalit, “Alarm Bell Starts

Ringing in Harsud” The Hindu, July 11, 2004. [ ]

69. Arundhati Roy, The Greater Common Good, April 1999, [ ]