September 2012


Doctrine divides, Action unites

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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 government.

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 should follow?

The ongoing protest challenges this very fundamental, but mistakenly assumed, role of the court, exhibited while deciding the NBA case on May 11, 2011.

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 fallen.

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 <>.