Rights in India
are a Mandate, Not a Concession
Asian Human Rights Commission
A protester holds to the last resort for justice.
(Photo by Narmada Bachao Andolan and Vikas Samvad)
The ongoing protest by village communities acting
against the increase of the water level of the Omkareshwar Dam is unique
in several aspects. The protest, which completed its 11th day on Sept.
4, is directed against the Madhya Pradesh state government that has
failed to adequately rehabilitate those who have lost their land and
livelihood to this “development” project. The protest is being held in
the East Nimaar region, i.e., in Khandwa District of Madhya Pradesh. The
villagers have been standing chin-deep in water within the dam’s
catchment area, claiming their willingness to drown if the government
continues to deny them their right to adequate rehabilitation for land
and livelihood lost to the project. The protest is organized by the
Narmada Bachao Andolan (NBA), which has been fighting for the rights of
numerous communities, such as tribal communities, fisherfolk, farmers
and agricultural labor, that are being denied land and livelihood by the
Narmada Valley projects.
The protest is an embodiment that negates the wisdom of the Supreme
Court of India as displayed in the court’s ruling in the cases of Civil
Appeals 2082/2011 (NBA vs. State of Madhya Pradesh),
2098-2112/2011 (Narmada Hydroelectric Development Corp. [NHDC] vs.
NBA), 2115/2011 (State of Madhya Pradesh vs. NBA) and
2116/2011 (NHDC vs. NBA) on May 11, 2011. A Supreme Court bench
of Justices J. M. Panchal, Deepak Verma and B. S. Chauhan decided the
appeals, almost completely in favor of the government of Madhya Pradesh
and the NHDC.
The NHDC was set up on Aug. 1, 2000, having its corporate office in
Bhopal, Madhya Pradesh, with the objective of developing hydropower and
the potential of renewable energy in the state. The NHDC constructed the
Indira Sagar Project (1,000 megawatts) and Omkareshwar Project (520
megawatts) in the Narmada basin. Both projects were completed in 2005
and 2007 respectively.
Despite assurances by the government of Madhya Pradesh, most importantly
in the rehabilitation and resettlement policies formulated and
promulgated by the government concerning the project, villagers,
including tribal communities that have, in fact, lost their land and
livelihood to the project, are yet to be properly identified and
rehabilitated. The ongoing protest is against this failure of the
The protesters, around 250 in number and increasing, representing more
than 100,000 affected people, are aggrieved that no one from the
government has come to listen to their concerns. They are equally
concerned that, in the absence of any consultation, if the government is
to fill the dam to its full capacity, which requires increasing the
water level to 196.60 meters at the least, they will not only lose their
land, which is yet to be on the record of the government, but will be
further denied adequate compensation and rehabilitation.
The widespread corruption reported in the assessment and disbursal of
the rehabilitation schemes, which the bureaucracy has preferred to
settle in cash handouts, has benefited ineligible persons. Even when
land for land has been allotted in the various Narmada Valley
hydroelectric projects, the procedure has been diseased with corruption
as is evident in the fake registries scam being inquired into by the
Justice Jha Commission.
Additionally, what has been at stake for tribal and other indigenous
communities is their very livelihood and way of life, which the Supreme
Court, in a self-assumed role of “rehabilitator” and “reformer,” has
decided in the judgment that the indigenous communities are to be
satisfied with. It raises a fundamental question, Where does the court
derive such supreme authority as to decide what way of life a person
The ongoing protest challenges this very fundamental, but mistakenly
assumed, role of the court, exhibited while deciding the NBA case on May
The court also has proposed a completely alien theory in its judgment,
which are the path-breaking principles of “as far as possible” and the
“doctrine of impossibility,” which negate the basic premises of the
Indian Constitution where fundamental rights are supposed to be
paramount and the absolute responsibility of the State to protect,
promote and fulfill people’s rights are held to be most important. The
court, however, has failed to provide any acceptable rationale for its
new proposition. In plain language, these two arguments by the court
imply that the State needs to fulfill its mandate to its subjects only
to the extent that it wishes, and they imply a complete reversal of the
court’s own jurisprudence, which has thus far held the Indian State
singularly responsible for the safety and security of all fundamental
rights of the people.
It has further fired a defensive salvo by arguing against the court’s
role in influencing state policies, which the court has done so far to
the benefit of the people, and continues to do with regard to right to
food litigation, although even this tradition is likely to end soon.
Policy formulation by the government and adjudication by the court both
have to fall within the basic structure of the Constitution. In this
regard, the court is within its mandate to intervene with the polices of
the State, in so far as such policies are bound to negate the basic
constitutional premise, which, in this case, is the denial of the right
to life with dignity of the people. The court has diluted this call for
being the guardian of the Constitution by way of an unsustainable
argument: what policy the government should follow for rehabilitation
should be left up to the government. In doing so, the court has given up
its constitutional mandate of being the arbiter for a dispute between
the State and its subjects.
If the absolute right to life with dignity was not negated by the State
in its policy, which lacks adequate rehabilitation and compensation
procedures, what else was there to discuss by the court in the NBA case?
The current protest, while underlining the fact that the courts in India
have given up the cause of the common person, also brings to the
forefront what citizens can do when cornered and their rights denied
openly and shamelessly by the State.
For the protesters in Khandwa, life is at stake. After 11 days in water,
formerly a river, now a stagnated lake, chances are that people will, if
not already, fall sick. Lives will be lost, which through appropriate
action could have been prevented. Pushing people to protest to avail the
basic minimum for survival is the depths to which the Indian State has
In this struggle, the people have thus far adhered to a peaceful and
unique way of communication. It would be a shame if the State ignores
the protest and lets anyone die in the process. Such an event would be
the death knell to that faint hope of democratic values these protesters
uphold and for any moral basis of the Indian State.
* The Asian Human Rights Commission (AHRC) is a regional
non-governmental organization monitoring and lobbying human rights
issues in Asia. The Hong Kong-based group was founded in 1984. More
information is available on AHRC’s web site at <http://www.ahrchk.net/index.php>.