Background “Big Dams are to a nation‟s „development‟ what nuclear bombs are to its military arsenal. They‟re both weapons of mass destruction.” “Nobody builds Big Dams to provide drinking water to rural people. Nobody can afford to.” - Arundhati Roy
Water today has become a source of conflict because it is a life sustaining resource. The excessive use of water, over exploitation of water resources, unequal access to water to different groups. Interstate water dispute stands at the juncture of two fields of law: federalism under constitutional law, and water law. Because India is a federal democracy, and because rivers cross state boundaries, constructing efficient and equitable mechanisms for allocating river flows has long been an imperative legal and constitutional subject. The provisions of the Constitution relating to interstate water dispute give a good instance of co-operative federalism. In India water is primarily falls under State list, except in case of interstate rivers where the Central government can intervene. However, powers of the river board created under River Boards Act, 1956 only have advisory powers. There have been instances where States have refused to accept the decision of tribunals rendering the arbitration not binding, which makes the Indian water dispute settlement mechanisms further ambiguous and opaque. The main disagreement is over the cost of the projects and sharing of benefits of the multi purpose river projects. The main point of contention is that downstream state's objection to pollution, excessive irrigation and construction of dams by the upper streams states which might then control the quantity of water flowing to the downstream state. This leads to disputes between the states.
It has 14 major rivers that are inter-state rivers and 44 medium rivers of which 9 are interState rivers. For the reason that India is a federal democratic system, and because rivers cross state boundaries, constructing proficient and equitable mechanisms for allocating river flows has long been a significant legal and constitutional question. Many inter-state river-water disputes have erupted since independence. On the face of it, inter-state water disputes involve issues of: (i) Allocation of waters between different states; (ii) Apportionment of construction costs and benefits if a project is developed jointly by more than one state; (iii) Compensation to the states prejudicially affected by the implementation of a project by another state; (iv) Dispute settlement relating to interpretation of agreements and;
(v) Excess withdrawals by a state The relevant provisions in the present Indian Constitution are:
• Entry 17 in the State List, • Entry 56 in the Union List, and • Article 262.
Entry 17 makes water a state subject, but qualified by Entry 56 in the Union List, which empowers Union regarding the regulation and development of inter-state rivers and river valleys to the extent to which such control of the Union is declared by parliament by law to be expedient in the public interest. In addition to this, Article 262 explicitly grants right to legislate to parliament over the matters in Entry 56, and also gives it primacy over the Supreme Court. Various River Authorities have been proposed, but not legislated or established as bodies vested with powers of management. Instead, river boards with only advisory powers have been created. Article 262 states: (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). Parliament has enacted two laws under the above provisions: 1) River Boards Act of 1956- This Act was made for setting up of river boards by the Central Government at the request of the interested parties. 2) Inter-State Water Disputes Act of 1956 – Under this Act, in case of a dispute, the affected State is empowered to request the Central government to refer disputes relating to the use, distribution, or control of Inter-State river waters for adjudication by tribunal constituted under the Act. In addition to this, if the Central Government feels that the water dispute referred to it cannot be settled by negotiations, then it can refer the dispute for adjudication by a tribunal constituted under the th e Act. The tribunal tribu nal shall sha ll then the n investigate inve stigate the complaint compl aint and an d forward a report to the Central government known as order or award of the tribunal. Within three months of the report, the Central Government or any of the State Government concerned can approach the tribunal for clarification. The Central Government shall publish the tribunal‘s decision in the official gazette, and then the decision will be final and binding on the parties to the dispute. Neither the Supreme Court nor any other court shall exercise jurisdiction in respect resp ect of any water dispute referred referr ed to a tribunal.
Besides this, National Water Policy of 1987 also dealt with distribution of water amongst the states. Water being a State subject, it is necessary that the initiative and responsibility for Development of inter-state rivers and river valleys should primarily rest on the State government. Experience, has, however, shown that the river valley projects have been considerably hampered in the past by the conflict of interests among different state governments. While it is necessary to ensure that the powers of State governments in relation to inter-state rivers and river valleys remain unaffected, it is also necessary to make suitable provision for resolving conflict among the State governments and for achieving maximum results in respect of conservation, control and optimum utilization of water resources of interstate rivers. The debate over water as a federal issue is couched within the following two lines of Arguments: * That water is rightly a state subject and this position must be accepted and that the centre must refrain from encroaching into this area. However, the other viewpoint is that* Water is not a state subject under our constitution and centre needs to play an important role in regard to this precious resource and that in order to facilitate this water should be transferred to concurrent list. The entire controversy with regard to water vis-à-vis federalism stems from the proposition that water is a state subject. In fact this proposition is taken for granted as a basic datum. Of course, given the above-mentioned constitutional framework it could be plausibly argued that water is a state subject and thus any encroachment into this area by the Union is unwarranted. However, a pragmatic analysis of these provisions would reveal that water is not strictly a state subject. The legislative competence of the state governments under Entry 17 remains unfettered only because Parliament has not made much use of the powers vested in it by Entry 56 of the Union List. It is, therefore, not quite right to say that water is a state subject; it is potentially as much a central subject as a state subject, considering the fact that most of our rivers are inter-state. Centre‘s role and jurisdiction with regard to water is reinforced by the use of circuitous route through the provisions of Entry 20 in the Concurrent List, namely, ‗economic and social planning‘ by virtue of which major and medium irrigation, hydro -power, flood-control and multi-purpose projects have been subjected to the requirement of Central clearance for inclusion in the national plan[5]. plan[5]. This has been questioned by some State governments, but the clearance requirement remains, and there is of course the requirement of Central clearances under the Forest Conservation Act[6] Act[6] and the Environmental Protection Act[7]. Act[7]. This leads to a plausible conclusion that even without any constitutional amendments the centre can do a great deal in relation to water.
Any discussion on federalism and water resource management cannot be done without analyzing the aspect of inter-state water dispute disputes[11]. s[11]. Considering the number of such
disputes in the country, their impact on our federal scheme cannot be ignored because as mentioned earlier in the paper real federalism does not envisage a relationship between Centre and states but also between different states. In fact inter-state river water disputes in India have long been recognized as an important federal issue. The ‗Sarkaria Commission‘ Commission‘[12] on center-state relations (Government of India, 1988) devoted an entire chapter to the problem, and made a series of recommendations. There have been plenty of inter-state water disputes but in most of these cases, after a protracted period of dispute, there was finally an agreement or an award. The awards aw ards of the Krishna, Godavari, and Narmada tribunals are examples of this process of conflict resolution. Certainly, there can be post-award disputes too, for instance, the dispute between Andhra Pradesh on the one hand and Karnataka and Maharashtra on the other regarding what is known as the Telgu-Ganga Project. One instance in which the process of conflict-resolution has not worked is the case of the Ravi- Beas waters, where the tribunal‘s award stands stalled and seems unimplementable in the foreseeable future. Even here it must be remembered that there were two earlier inter state agreements regarding Ravi-Beas waters, and that the present stalemate on this issue is one of the consequences of larger Punjab problem. The most recent and controversial example of inter-state water dispute is the one between Karnataka and Tamil Nadu regarding Cauvery water s[13]. Unfortunately, the issue has become highly politicised. The governments of two states have adopted public postures, which have rendered a negotiated settlement difficult and soured relationship. In the context of a real and co-operative federalism it must be noted that adjudication is not the best means of resolving inter-state water dispute and that a negotiated settlement is the more appropriate course. The Inter-State Water Disputes Act, 1956 itself, while it enables one of the states concerned to request the centre to establish a tribunal, requires the central government to satisfy itself that a dispute exists and that it cannot be settled through negotiations, before it establishes a tribunal. This sometimes leads to delay in the establishment of tribunal, while the centre continues to explore the possibilities of a negotiated settlement. The ‗Cauvery Tribunal‘ itself is a case in point. The Tamil Government asked for it in July 1986 and the Central Government established only in 1990 that too after the Supreme Court intervened.[14] intervened.[14] However, recently a period of one year has been fixed for the constitution of the tribunal from the date of request. Article 262 of the Constitution and the ISWD Act 1956 enacted under it are important components of our federal structure. In terms of these provisions the award of a tribunal set up under the ISWD Act is final and binding on the states concerned, and there can be no appeal to Supreme Court against such an award, though there is a procedure for reference back to the tribunal within a limited period of time. This was clearly intended to obviate protracted inter-state litigation on river waters and the consequent prolongation of the dispute. It follows that the award of such a tribunal is virtually a decision by the Supreme Court. However, in recent years a disturbing element has emerged in this regard in form of
lack of respect shown to these constitutional and statutory provisions. If the award of the tribunal is indeed final and binding, there can be no question of its being rejected; but this was precisely what happened in the case of the ‗Ravi -Beas‘ dispute in which the Punjab Government rejected the award. Similarly, in the case of the Cauvery dispute the Tribunal‘s interim order was sought to be nullified by the Karnataka government through an Ordinance. The Supreme Court pronounced that the Ordinance was unconstitutional[15]. unconstitutional[15]. These are the dangerous portents for the future of federalism and indeed of the rule of law in this country. There is an urgent need to evolve the culture of co-operative federalism. A Sincere and earnest revival of the practically dead River-Boards Act, 1956 may provide a long term solution.[16] solution.[16] Legal Theories and Institutions General Approaches ILA drafted the famous 'Helsinki Rules on the Uses of Waters in International Rivers' in 1966, which were widely used and quoted, including the India-Bangladesh negotiations over Ganges (Salman and Uprety 2002). The Helsinki Rules also, for the first time, expand their scope to cover groundwater as well. The Rules recommend considering several factors for determining reasonable and equitable sharing1 Initial claims to water in negotiations are often justified in terms of one of several sev eral simple legal doctrines. These doctrines d octrines are really re ally rules ru les of thumb, which seek to formulate a general approach to division of the scarce resource of river water. We first simply enumerate these rules, and then briefly outline some of their implications for resource allocation. We may identify five such "theories" or legal doctrines. 1. ―Theory of absolute territorial sovereignty‖. Under this doctrine, a riparian state can do what it pleases with its waters without regard to its effect on other co-riparian state and no riparian state has a right to demand the continued flow of water from other states. This is a variant of what is known as the "Harmon" doctrine in the United States. 2. ―Theory of natural water flow‖ or the ―terri ―te rritorial integrity theory‖. According to this theory every lower riparian is entitled to the natural flow of the river without any interference from the upper riparian. This approach clearly has similarities to the Harmon doctrine, in that it claims rights based on natural bounty: the difference is in how nature's intentions are interpreted 3. ―Theory of prior appropriation‖. This theory says t hat the first user who puts the water to beneficial use establishes a prior p rior right and subsequent users can only o nly appropriate ap propriate for what wh at is 1 Article V(II) of Helsinki Rules (1967): "Relevant factors which are to be considered include, but are not limited to: 1. The geography of the basin, including in particular the extent of the drainage area in the territory of each basin State; 2. The hydrology of the basin, including in particular the contribution of water by each basin State; 3. The climate affecting the basin; 4. The past utilization of the waters of the basin, including in particular existing utilization; 5. The economic and social needs of each basin Sta te; 6. The population dependent on the waters of the basin in each basin State; 7. The comparative costs of alternative means of satisfying the economic and social needs of each basin State; 8. The availability of other resources; 9. The avoidance of unnecessary waste in the utilization of waters of the basin; 10. The practicability of compensation to one or more of the co-basin States as a means of adjusting conflicts among uses; and 11. The degree to whi ch the needs of a basin State may be satisfied, without causing substantial injury to a co-basin State." (ILA, 1967: 1)
left by the first user. This doctrine allocates property rights to water on the basis of historical use. 4. ―Theory of community of interest‖. Under this theory t he whole basin is regarded as a single economic unit. It cuts across all state boundaries and the water can be utilized to the maximum benefit of all in an integrated manner. 5. ―Theory of equitable utilization of Inter -State river waters‖- This theory stresses that there should be equitable utilization of common rivers by mutual agreement among concerned parties. Needless to say, these rules of thumb have very different implications. The Harmon Doctrine assigns a clear property right, but it ignores externalities as well as past investments connected with water use.
Narmada Bachao Aandolan
v.
Union Of India and Ors. - A Case Study
Social mobilisation, for various reasons, has been popular in india from the period of 1970s. The broader aim of these movements was development of society. Some of the well-known movements that took place in india are : Chipko movement, Narmada Bachao Andolan, Koel Karo, Chattisgarh Mukti Morcha, Jhola Andolan, the movement supporting Anna Hazare, etc. These movements distanced themselves from politics or political parties. In this blog, i will take up the detailed case study of the Narmada Bachao Andolan (NBA). Narmada Bachao Andolan(NBA) is a social movement consisting of farmers, adivasis, environmentalists, activists protesting against the implementation of the Sardar Sarovar Project(SSP) on the river Narmada. Some of the debatable charcteristics of the SSP were :Provision of irrigation and electricity facilities to the economically prosperous and politically powerful regions r egions of South and Central Gujarat, Gujar at, while displacing politically politicall y marginal Adivasi subsistence peasants in Maharashtra and Madhya Pradesh. For facts, adivasis constitute only 8% of the total national population, but they represent 40% of the people who were displaced by construction of dams in i n india since 1947. In India large infrastructure projects have been seen as an important component of the development strategy since independence. This includes construction of heavy industries, mega-dams and large-scale creation of infrastructure. Large infrastructure projects in the form of dams over the rivers have always been considered to provide power and irrigation benefits to the areas, which suffer s uffer from the problem of underdevelopment. un derdevelopment. With the similar objective of speeding up the process of development, idea of tapping the waters of river Narmada, which is the largest river of peninsula India, flowing through three states of Madhya Pradesh, Maharashtra and Gujarat, was conceived and consequently of the Narmada Valley Project to execute the t he same. The Narmada River, on which the Indian government plans to build some 3,200 dams, flows through three states: Madhya Pradesh, Maharashtra, and Gujarat. Ninety percent of the river flows through Madhya Pradesh; it skirts the northern border of Maharashtra, then flows through Gujarat for about 180 kilometers before emptying into the Arabian Sea at Bharuch. Plans for damming the river at Gora in Gujarat surfaced as early as 1946. In fact, Prime Minister Jawaharlal Nehru laid the foundation for a 49.8-meter-high dam in 1961. After studying the new maps the dam planners decided that a much larger dam would be more profitable. The only problem was hammering out an agreement with neighboring states (Madhya Pradesh and Maharashtra). In 1969, after years of negotiations attempting to agree on a feasible water-sharing formula, the Indian government established the Narmada Water Disputes Tribunal. Ten years later, it announced its award. ―The Narmada Water Disputes Tribunal Award states that land should be made available to the oustees at least one year in advance beforesubmergence‖(www.narmada.org/sardarsarovar.html). Before the Ministry of the Environment even cleared the Narmada Valley Development Projects in 1987, the World Bank sanctioned a loan for $450 million for the largest dam, the Sardar Sarovar, in 1985. In actuality, construction on the Sardar Sarovar dam site had
continued sporadically since 1961, but began in earnest in 1988. Questions arose concerning the promises about resettlement and rehabilitation programs set up by the government, so by 1986 each state had a people‘s organization that addressed these concerns. Soon, these groups came together to form the Narmada Bachao Andolan (NBA), or, the Save the Narmada Movement. In 1988, the NBA formally called for all work on the Narmada Valley Development Projects to be stopped. In September 1989, more than 50,000 people gathered in the valley from all over India to pledge to fight ―destructive development.‖ A year later thousands of villagers walked and boated to a small town in Madhya Pradesh to reiterate their pledge to drown rather than agree to move from their homes. Under intense pressure, the World Bank was forced to create an independent review committee, the Morse Commission, which published the Morse Report (a.k.a. Independent Review) in 1992. The report ―endorsed all the main concerns raised by the Andolan [NBA]‖ (www.narmada.org/sardarsarovar.html). In author Arundhati Roy‘s opinion ―It is the most balanced, unbiased, yet damning indictment of the relationship between the Indian State and the World Bank.‖ Two months later, the Bank sent out the Pamela Cox Committee. It suggested exactly what the Morse Report advised against: ―a sort of patchwork remedy to try and salvage the operation‖ (Roy 45 -46). Eventually, due to the international uproar created by the Report, the Bank withdrew from the Sardar Sarovar Project. In response, the Gujarati government decided to raise $200 million and push ahead The Narmada River, on which the Indian government plans to build some 3,200 dams, flows through three states: Madhya Pradesh, Maharashtra, and Gujarat. Ninety percent of the river flows through Madhya Pradesh; it skirts the northern border of Maharashtra, then flows through Gujarat for about 180 kilometers before emptying into the Arabian Sea at Bharuch. Plans for damming the river at Gora in Gujarat surfaced as early as 1946. In fact, Prime Minister Jawaharlal Nehru laid the foundation for a 49.8-meter-high dam in 1961. After studying the new maps the dam planners decided that a much larger dam would be more profitable. The only problem was hammering out an agreement with neighboring states (Madhya Pradesh and Maharashtra). In 1969, after years of negotiations attempting to agree on a feasible water-sharing formula, the Indian government established the Narmada Water Disputes Tribunal. Ten years later, it announced its award. ―The Narmada Water Disputes Tribunal Award states that land should be made available to the oustees at least one year in advance before submergence‖ (www.narmada.org/sardarsarovar.html). Before the Ministry of the Environment even cleared the Narmada Valley Development Projects in 1987, the World Bank sanctioned a loan for $450 million for the largest dam, the Sardar Sarovar, in 1985. In actuality, construction on the Sardar Sarovar dam site had continued sporadically since 1961, but began in earnest in 1988. Questions arose concerning the promises about resettlement and rehabilitation programs set up by the government, so by 1986 each state had a people‘s organiz ation that addressed these concerns. Soon, these groups came together to form the Narmada Bachao Andolan (NBA), or, the Save the Narmada Movement. In 1988, the NBA formally called for all work on the Narmada Valley Development Projects to be stopped. In September 1989, more than 50,000 people gathered in the valley from all over India to pledge to fight ―destructive development.‖ A year later thousands of villagers walked and boated to a small town in Madhya Pradesh to reiterate their pledge to drown
rather than agree to move from their homes. Under intense pressure, the World Bank was forced to create an independent review committee, the Morse Commission, which published the Morse Report (a.k.a. Independent Review) in 1992. The report ―endorsed all the main concerns raised by the Andolan [NBA]‖ (www.narmada.org/sardarsarovar.html). In author Arundhati Roy‘s opinion ―It is the most balanced, unbiased, yet damning indictment of the relationship between the Indian State and the World Bank.‖ Two months later, th e Bank sent out the Pamela Cox Committee. It suggested exactly what the Morse Report advised against: ―a sort of patchwork remedies to try and salvage the operation‖ (Roy 45 -46). Eventually, due to the international uproar created by the Report, the Bank withdrew from the Sardar Sarovar Project. In response, the Gujarati government decided to raise $200 million and push ahead with the project. While the Independent Review was being written and also after it was published confrontations between villagers and authorities continued in the valley. After continued protests by the NBA N BA the government charged char ged yet another committee, co mmittee, the Five Member Group (FMG), to review the SSP. The FMG‘s report endorsed the Morse Report‘s concerns but it made no difference. Following a writ petition by the NBA in 1994 calling for a comprehensive review of the project, the Supreme Court of India stopped construction of the Sardar Sarovar dam in 1995. Tension in the area dissipated but soon the NBA‘s attention shifted to two other Big Dams in Madhya Pradesh – the Narmada Sagar and the Maheshwar. Though these dams were nowhere near their projected heights their impacts on the environment and the people of the valley were already apparent. The government‘s resettlement program for the displaced natives ―continues to be one of callousness and broken promises‖ (Roy 51). In 1999, however, the Supreme Court allowed for the dam‘s height to be raised to 88 meters (from 80 meters when building was halted in 1995). In October 2000, the Supreme Court issued a judgement to allow immediate construction of the Sardar Sarovar Dam to 90 meters. In addition, it allowed for the dam to be built up to its originally planned height of 138 meters. These decrees have ―come from the Court despite major unresolv ed issues on resettlement, the environment, and the project‘s costs and benefits‖ While the Independent Review was being written and also after it was published confrontations between villagers and authorities had continued in the valley. After continued protests by the NBA N BA the government charged char ged yet another committee, co mmittee, the Five Member Group (FMG), to review the SSP. The FMG‘s report endorsed the Morse Report‘s concerns but it made no difference. Following a writ petition by the NBA in 1994 calling for a comprehensive review of the project, the Supreme Court of India stopped construction of the Sardar Sarovar dam in 1995. Tension in the area dissipated but soon the NBA‘s attention shifted to two other Big Dams in Madhya Pradesh – the Narmada Sagar and the Maheshwar. Though these dams were nowhere near their projected heights their impacts on the environment and the people of the valley were alr eady eady apparent. The government‘s resettlement program for the displaced natives ―continues to be one of callousness and broken promises‖ (Roy 51). In 1999, however, the Supreme Court allowed for the dam‘s height t o be raised to 88 meters (from 80 meters when building was halted in 1995). In October 2000, the Supreme Court issued a judgement to allow immediate construction of the Sardar Sarovar Dam to 90 meters. In addition, it allowed for the dam to be built up to its originally planned
height of 138 meters. These decrees have ―come from the Court despite major unresolved issues on resettlement, the environment, and the pr oject‘s oject‘s costs and benefits‖
The government of India supports the building of over 3,000 dams on the Narmada River. What the State fails to take into account are the infinite costs of what it terms National Development; the millions of lives affected by the devastating environmental impacts of building dams. Narmada Bachao Andolan, The Save the Narmada Movement The NBA is a people‘s movement formed from local people‘s movements in Madhya Pradesh, Maharashtra, and Gujarat. Through peaceful means, the NBA has brought much media attention to the plight of the native people along the river. Medha Patkar is a prominent leader of the group. World Bank The World Bank had originally supported the Sardar Sarovar with a $450 million loan. However, after appointing an independent panel to review the impacts of the project the Bank withdrew support. The panel expressed much concern that the environmental and social impacts of the project had not been properly considered. The Supreme Court The Court is one of the most formidable opponents of the NBA. It has exercised its power over the people through judgements to continue with building of dams along the river, disregarding concerns about the dams‘ environmental and social impacts . 1947-1979- Formative Years. A first study about a "Narmada Valley Development Project" started in 1947. The aim was to provide large amounts of water and electricity electri city that tha t "are desperately required for the purposes of development". The Award of the Narmada Water Disputes Tribunal in 1979, disputes about what to construct where, were arguments among three, and later four, state governments within India. The Constitution of India defines construction and maintenance of water development projects as a matter within the authority of the state governments. It also provides that the central government can step in to help resolve disputes regarding projects that would affect the flow of a river crossing state boundaries.3 That was the basis for the central government's involvement in the lengthy dispute among Gujarat, Madhya Pradesh, and Maharashtra. Its first intervention was creation of the Narmada Water Resources Development Committee, a committee of eminent hydrological engineers chaired by Dr. A. N. Khosla. Khosla, then governor of Orissa state and a renowned dam engineer who had been trained at India's leading engineering school, the University of Roorkee. He and the other engineers on the committee were instructed to help the three states resolve their disputes by developing a master plan for optimum development.4
They were particularly asked to examine the siting and height of the proposed dam at Navagam in relation to alternative altern ative projects, proje cts, mainly hydroelectric dams, that th at Madhya Pradesh wanted to build because their feasibility depended on the extent of the reservoir created behind any dam at Navagam. The committee ultimately recommended in favor of the relatively high dam preferred by Gujarat, in part because it would allow extending irrigation systems into the dryer districts of Rajasthan and Gujarat, areas then prominent in politicians‘ and officials‘ minds because Pakistani troops had intruded into India during April 1965 through one of the dryer parts of Gujarat. Though the Khosla Committee's report was ultimately rejected, it shaped later discussion by considering the Narmada and its tributaries as one system and arguing for a "national approach" to water resources that would justify extending irrigation canals to areas outside the Narmada basin. 3 Constitution of India, Seventh Schedule, II:7 and I: 56, and Article 262. 4 Government of India, Ministry of Irrigation and Power. 1965. Report of the Narmada Water Resources Development Committee (A.N. Khosla, chair). chair). Cuttack: Orissa Government Press. A combination of failure to resolve the dispute by direct discussions among the state governments involved and serious drought in western India caused by failure of the monsoons in 1965-66 and 1968-1969 led Gujarat, where the drought was particularly severe, to ask for central government involvement. It formally invoked the Inter-State Water Disputes Act 1956 and asked the central government to form a water disputes tribunal to settle the contentions over Narmada projects. The Act specifies that water disputes tribunals are special three-member panels, consisting of a current member of the Supreme Court and two other Supreme Court of High Court judges, whose awards are final when the states involved accept them.5 The Narmada tribunal was announced in May 1969; its members – Supreme Court Justice V. Ramaswami (holder of a master‘s degree in chemistry as well as a law degree), Allahabad High Court Justice G.C. Mathur and retired chief justice of Kerala V.P. Gopalan – were aided by a staff of 50 technical advisers and civil civi l servants. serv ants. The need to address add ress various procedural challenges, mostly from Madhya Pradesh, meant it did not start considering the substantive issues until February 1972. After another delay inspired by Prime Minister Indira Gandhi‘s efforts to mediate the dispute, the Tribunal resumed work in August 1974. Between 1974 and December 1979 when it issued its report, the Tribunal held no public hearings or other consultations with any stakeholders (including politicians from the disputing states); such procedures were not the norm in India at the time and no one raised the issue. Rather, it operated like court, with the states presenting their arguments through lawyers, examination and cross-examination of expert witnesses, and visits to various sites along the Narmada in the company of their technical experts. The Narmada Water Disputes Tribunal Award (NWDT Award) set out a plan for construction of 30 major dams, 125 medium dams, and 3000 small dams at various locations on the Narmada or its 41 tributary rivers plus a 532 km (329 mile) canal from the reservoir that would be created by the dam at Navagam through Gujarat and into Rajasthan. It accepted construction of a high large dam at Navargam, as Gujarat proposed, but determined that it should be 455 feet (138.7 meters) high rather than the 530 feet (162 meters) urged by Gujarat.
Other terms of the Tribunal's Award reflected efforts to balance benefits and costs among the four participating states. Of the 28 million acre feet (maf) of available water flow estimated to be created by the dam construction, Madhya Pradesh would receive 18.25 maf (65.2%); Gujarat, 9 maf (32.2%); Rajasthan, 0.5 maf (1.7%); and Maharashtra, 0.25 maf (0.9%). The estimated hydroelectric production would be divided on the formula of 57% to Madhya Pradesh, 27% to Maharashtra, and 16% to Gujarat. Though on hydrological calculations four fifths of the Narmada's flow is within Madhya Pradesh, Gujarat was allocated a somewhat larger than proportional share of water on grounds that it needed water much more than Madhya Pradesh or Maharasthra because they can also draw on other rivers whereas Gujarat only had the Narmada. Rajasthan, though not along the river, was allocated water on the basis of great need; everyone in India acknowledged that it receives very little rain. Madhya Pradesh and Maharashtra were given larger shares of electricity than their current populations might suggest to make up for the fact that the height of the dam at Navargam would prevent them from building their proposed Jalsindhi hydroelectric dam because the area would be flooded by the reservoir created by the Navagam dam.6 5 Inter State Water Disputes Act 1956, Section 6 (Publication of Decision of Tribunal) subsection 1 (subsection 2 incorporates the 2002 amendment). Text available at http://mowr.gov.in/index3.asp?sslid=385&subsublinkid=377&lang http://mowr.gov.in/index3.asp?sslid=385& subsublinkid=377&langid=1 id=1 (accessed (accesse d 11 August 2010). 6 Narmada Water Disputes Tribunal. 1979. Report of the Narmada Water Disputes Tribunal with its Decision. 5 vols. New Delhi: Controller of Publications. The shorter terms of the Award, dated 7 December 1979, 1979, and published in the Official Gazette on 12 December 1979 are available at http://nca.gov.in/forms_pdf/nwdt_finalo http://nca.gov.in/forms_pdf/nwdt_finalorder.pdf rder.pdf (accessed 29 July 2010) and reproduced in Appendix 2. To address the uncertainties involved in allocating shares of water, the tribunal included a provision that th at the water apportionment would wou ld be subject to review in 2025. This would wou ld be 45 years after 1980 — a baseline picked because the tribunal expected that construction of the 3 largest dams of Madhya Pradesh‘s portion of the Narmada Project (Indira Sagar, a combined irrigation and hydroelectric dam 319 km or 198 miles upstream from Navagam; Omkareshwar, with a smaller irrigation reservoir plus hydroelectric capacity; and Maheswar, a hydroelectric flow-through dam) to begin before the end of that year. The review would permit addressing any changes in river flow caused by the climate or the hydrology of the basin and in user needs stemming s temming from demographic changes in the four states. The 45 years would also provide time to assess the performance of the whole interconnected system of dams and canals and take that into account as well. Detailed design, construction, operation, and maintenance of the Narmada River system would be undertaken by the state governments, each on its own stretch of the river. Gujarat and Madhya Pradesh established public corporations for this purpose: Sardar Sarovar Narmada Nigam Limited (SSNNL) in Gujarat and the Narmada Valley Development Authority (NVDA) in Madhya Pradesh. The fact the river flows between states provided the legal basis for the tribunal's decision to set up the Narmada Control Authority, employing both government of India and state engineers and civil servants to coordinate and monitor
finance, construction, and resettlement of people whose homes would be flooded by the reservoirs (―oustees‖). The central government also had some control over the details of the projects through the Central Water and Power Commission, the Planning Commission, and the Ministry of Environment and Forests, each of which had authority to grant or withhold clearance for proceeding with various aspects of project construction. The NWDT Award did not end all the argument – Gujarat and Madhya Pradesh continued to disagree about the height of the dam to be built at Navagam, now named the Sardar Sarovar Dam, and hence the size of the reservoir to be created. However, those arguments were soon overshadowed by controversies over treatment of the oustees and environmental impacts of the whole Narmada River project. The resistance against the dam in i n the form of the ‗Narmada Bachao Andolan‘ started with the beginning of the works in 1987. The main issue for critics and debate is the "Rehabilitation and Resettlement"- (R&R) policy. According to the Narmada Water Dispute Tribunal (NWDT), every project-affected project-affect ed family (PAF) should be given land one year prior to the submergence of their land and be rehabilitated completely. The Narmada Valley is a long hill range in the state of Madhya Pradesh and forms downstream the border between Gujarat and Maharashtra. The Narmada River flows westwards into the Arabic Sea. A first study about a "Narmada Valley Development Project" started in 1947. The aim was to provide large amounts of water and electricity that "are desperately required for the purposes of development". It has grown to a project comprising 30 large dams, 135 medium and 3000 small dams. According to a first plan from 1959 the biggest dam d am should be the th e "Sardar Sarovar Project" Pr oject" (SSP). But full-scale full -scale construction of this dam did not start before 1987. 1980-2000 Resettlement and Rehabilitation The main issue for critics and debate is the "Rehabilitation and Resettlement"- (R&R) policy. According to the Narmada Water Dispute Tribunal (NWDT), every project-affected family (PAF) should be given land one year prior to the submergence of their land and be rehabilitated completely. The latest official estimates from the three states add up to 41,500 PAFs, or 207,500 people, around 80% of them in Madhya Pradesh. Almost all the PAPs in Gujarat and Maharashtra and perhaps half of those in Madhya Pradesh are adivasis, or indigenous peoples. Large numbers of poor and underprivileged communities are being dispossessed of their livelihood to make way for dams being built on the basis of dubious claims of common benefit and "national interest". For no large dam in India has it been shown that the resettled people have been provided with just compensation and rehabilitation. Two major actions took place in early 1989. There were protests against the Official Secrets Act that was clamped in the ten villages around the dam site on January 30, 1989. And then on February 22, 1989, there was a storming of the dam site by about 10,000 people from Nimad and the tribal areas. area s. The Gujarat government governmen t was caught unawares. The new slogan slo gan of "Koi nahin hatega, baandh nahin banega!" ("No one will move out, the dam will not be built") became a mantra for the fight against displacement. By this time, the people's opposition to the dam and their displacement had crystallized into a two-point program. First, non-cooperation with all dam related work; secondly, a firm determination not to move out of
their land and villages. The latter was symbolized by yet another popular slogan, "Doobenge, par nahin hatenge!" ("We will drown, but shall not move") Led by one of the prominent leader Medha Patkar, it has now been turned into the International protest, gaining support from NGO'S all around the globe. Protestors are agitating the issue through the mass media, hunger strikes, massive marches, rallies and the through the on screen of several documentary films. Although they have been protesting peacefully, but they been harassed, arrested and beaten up by the police several times. The Narmada Bachao Andolan has been pressurizing the World Bank to withdraw its loan from the project through media. The strong protests throughout the country not only made impact on the local people but has also influenced the several famous celebrities like film star Aamir Khan , who has made open efforts to support Narmada Bachao Andolan. He said he only wants that those who have been rendered homeless should be given a roof. Narmada Bachao Andolan has increasingly become one of the largest non-violent non-vio lent groups in the world. This is also popularly known as voice of the hundreds of thousands of people who are losing their land and livelihoods to large dams on the Narmada river . This Andolan includes mainly the issues of ecological imbalances and the issues of rehabilitation and resettlement of displaced people apart from other issues. Narmada Bachao Andolan since its formation has conducted various ambitious campaigns, as a consequence of that they have faced far more intense opposition and severe repression in comparison with the earlier civic initiatives. It must also be remembered that their objective which in the starting was merely to get a fair resettlement package for those who were being displaced has also undergone a change and now they started even opposing the whole plan.
In the Court Prashant Bhushan on behalf of the Narmada Bachao Andolan filed the petition in 1994. In its petition it raised questions regarding rehabilitation and environment, which formed essential requisites of the right to life, which is guaranteed by article 21 of the Constitution. Also under Challenge were Article 12 and Article 262. It urged before the court that the dam construction should not go on because the relief and rehabilitation of the oustees as per the Tribunal‘s Award had not been made. The court first dealt with the scope of the NBA petition and then decided to restrict it to relief and rehabilitation issue only.
