VolumeInternational II Number Journal 2 2011 for [23-28] Environmen tal Rehabilitation and Conservation Volume IV No. 2 2013 [33 – 37] [ISSN 0975 - 6272] [ISSN 0975 - 6272]

Sardar Sarovar and its Environmental Dimension: Critique of Supreme Court’s

Harish Verma

Received: May 10, 2013 ⏐ Accepted: August 11, 2013 ⏐ Online: October 15, 2013

Abstract Construction of large to accelerate speed of protection was ignored. In Sardar Sarovar or economic development of without taking into Narmada dam case, the Supreme Court took U-turn consideration their environmental dimensions has from its earlier environment friendly approach and devastating effects. It has constantly perceived that sidelined the environmental considerations of environmental conservation should be the very undertaking construction of this dam. Therefore, basis of every development process. Indian the present study is an attempt to critically examine judiciary especially Supreme Court during eighties the environmental ramifications of the role of the has showed a great zeal of enthusiasm to protect Supreme Court of India in the context of Sardar environment against developmental activities Sarvovar dam. undertaken by governments posing threat to Introduction environment. On wake of 21st century, when development was considered inevitable in India, Construction of dams in India was described even then Court heavily relied on principles of and considered as the “Temples of Modern sustainable development to make balance between India” by the first generation of leaders right to environment and right to development. But (Paramjit et al., 2001). The supporters of dams in case of Sardar Sarovar dam built on Narmada justify construction of large dams on the River in State of , the issue of environment grounds that dams are useful to control flood,

to eradicate poverty, and to provide water for Keywords: Development ⏐ Narmada dam ⏐ irrigation and drinking purposes. In addition to the above mentioned reasons favouring Environment ⏐ Pollution ⏐ Sustainable construction of dams, protagonists of dams Development ⏐ Supreme Court believe that large dams and multi-purpose river valley projects have provided food security to For correspondence: India. But it is well documented and proven

Department of Laws. L.R. Institute of Legal Studies, Solan fact that dams have failed to deliver projected Himachal Pradesh, India. results. Despite this, governments are Email: [email protected] undertaking construction of more and more

Sardar Sarovar Dam and its Environmental Dimension: Critique of Supreme Court’s 33 Volume IV Number 2 2013 [33 – 37] [ISSN 0975 - 6272] Harish Verma

large dams without taking into consideration Country. Today the Sardar Sarovar Project is their adverse environmental consequences. one of the largest water resources projects of The problem of environment pollution has India covering four major States - , become so serious worldwide including in , Gujarat and . With India that we can no longer ignore the issue of 1133 cumecs (40000 cusecs) capacity at the environmental protection in the name of head regulator, and 532 km. length, the development. Narmada Main Canal would be the largest The Supreme Court in the past has showed a irrigation canal in the World. The dam great zeal of enthusiasm to protect devastated human lives and biodiversity by environment against any developmental inundating thousands of acres of forests and activities and issued various directions in agricultural land. The Construction of the appropriate cases against governments and the Narmada dam was opposed by Narmada polluters regarding protection of environment. Bachao Andolan (NBA) an anti-dam When any developmental activities were organization. undertaken by governments threatening Environmental Dimensions of Sardar environment, the Supreme Court did not forget Sarovar Dam to uphold the cause of environment over In vs. Union of development. Even when development was India (AIR 2000 SC 3751) a PIL was filed by considered inevitable for the Country, the NBA. The petitioner raised various issues Court tried its best to reconcile right to including issue of environment deterioration development and right to environment. It did caused by construction of Naramda dam. The not afraid to endorse and apply principles of petitioner contended that the construction of sustainable development such as Polluter Pays Narmada dam would deteriorate quality of Principal, Precautionary Principle and Inter- environment in many respects such as its generational equity principle. But in Narmada construction would pose threat to forest and dam case, Supreme Court of India ignored the agricultural land and loss of biological and issue of environment protection and permitted aquatic diversity. NBA activists further construction of this dam. It was clear cut contended that the dam will disrupt deviation from its earlier environment friendly downstream fisheries and possibly inundate approach. Therefore, the present study is an and salinate land along the canals, increasing attempt to critically examine the environmental the prospect of insect-borne diseases. The ramifications of the role of the Supreme Court petitioner (NBA) further contended that of India in the context of Sardar Sarvovar environmental clearance granted in 1987 for dam. the construction of the Narmada dam was Sardar Sarvor Dam: Background without any proper application of the mind as The Sardar Sarovar Dam is located on river the complete studies in that behalf were not Narmada in State of Gujarat. It is 170 Km (106 available. The Ministry of Environment had miles) upstream from where the river flows only granted the conditional and tentative into the in the . clearance in 1987, subject to environmental The purpose of construction of the dam was to studies and remedial plans for the project. make optimum use of Narmada waters to solve Therefore it was contended that till that was the problems of irrigation in certain parts of the done, the project should not be allowed to

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proceed further. However, in October 2000, the carried out subsequent to the environmental Supreme Court gave a go-ahead for the clearance, they are not complete. construction of the dam. It is worthy to mention here that large dams are • S.P. Bharucha’s Environment Friendly often ecologically unsound and economically views Ignored unjustified. Justice Bharrucha also said that the environmental and health cost before According to minority judgement (Justice S.P. constructing this dam are not fully accounted. Bharucha), the majority judgement fails to These costs include the loss of forests and note that the Sardar Sarvovar Project does not wildlife, water logging, siltation, loss of arable have proper environmental sanction. Having land and increase water-borne diseases (Bina disagreed with the stand taken by majority of Srinivasan et.al, 2001; Prashant Bhushan et al., the judges on environmental matters Per 2003; Kailash Thakur & H.R.Jhingta et. al., Bharucha, J. had stated that “An adverse 2005). He further said that in Naramda dam impact on the environment can have disastrous case environmental clearance was given to the consequences for this generation and project without taking in to account its adverse generations to come. The Supreme Court impacts on wildlife, including birds, impact on earlier in its various judgments has recognised national parks and sanctuaries, on sites and this fact. For example, in State of Tamil Naidu monuments of historical, cultural and religious vs. Hind Stone AIR 1981 SC 711, the Supreme significance and on forest, agriculture, fisheries Court recognized the need to conserve and and recreation, tourism and on environmental protect the natural resources of the nation in rights. Requisite data for impact assessment wider interests of mankind. It observed that was not readily available. Despite the strong rivers, forests and minerals and such other dissenting judgement of Justice Bharucha, the resources constitute the natural wealth. These majority judges still went on to approve the resources are not to be fritted away or project and allowed it to go on without any exhausted by any one generation. Every comprehensive environmental impact generation owes a duty to all succeeding assessment. generations to develop and conserve the natural resources of the nation in the best • Impacts of Dams on Environment possible way. Bharucha Judge further stated Ignored that the Supreme Court cannot place its seal of The dams have their own adverse up-stream approval on so vast an undertaking as the and downstream impacts on environment. The project without first ensuring that whose best upstream environmental and ecological fitted to do so have had the opportunity of impacts of big dams are: soil erosion, micro- gathering all necessary data on the climatic changes, loss of forests, flora and environmental impacts of the project and of fauna, changes in fisheries, especially on assessing it. They must then decide if spawning grounds, chain effects on catchments environmental clearance to the project has area due to construction and displacement etc, been given, and, if it can, what environmental landslips, siltation and sedimentation, breeding safeguard measures have to be adopted, and of vectors in the reservoir and increase in their cost. While surreys and studies on the related diseases, seism city, loss of non forest environmental aspects of the project have been land, water-logging around reservoir and growth of weeds. The downstream

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environment impacts of the large dams are: Precautionary Principle and the corresponding Water-logging and salinity, micro-climatic burden of proof on the person who wants to changes, reduced water flow and deposition in change the status quo will ordinarily apply in a river, with related impacts on aquatic eco- case of polluting or other project or industry system, flora and fauna, flash floods, loss of where the extent of damage likely to be land fertility along with river ,vector breeding inflicted in not known. In the present case we and increase in related diseases. These adverse are not concerned with the polluting industry effects have long term and irreversible loss of which is being established. The dam is neither quality of human life and other creatures in the a nuclear establishment nor a polluting region. industry. It is surprising that the judges reached It is interesting to mention here the majority at such a conclusion. They are not treating views on the issue of environmental clearance. dams as industries and harmful to environment. The Court in Narmada dam case held “there • Refuse to Apply EIA Notification 1994 are different facets of environment and if in Retrospectively respect of a few of them adequate data was not Dams put several adverse impacts on available it does not mean that the decision environment as have been discussed earlier. It taken to grant environmental clearance was in is worthy to mention here that the Supreme any way vitiated”. The attitude of the Court Court refused to apply Environmental Impact favouring development over the environment is Assessment (EIA) Notifications of 1994 on the clearly evident from the views expressed by ground that environmental clearance to the majority judges in the said case. It was a construct Naramda dam was given in 1987 and clear cut subordination of the cause of the that time there was no procedure prescribed by environment as against the cause of any statute, rule or regulation regarding EIA. development. The procedure to conduct EIA provided in • Refuse to Apply Precautionary Principle 1994 cannot be applied retrospectively in case It is interesting to note here that the Supreme of Sardar Sarvovar Project. The reason is that Court in Narmada dam case refused to apply its construction commenced nearly around the precautionary principle of sustainable 1989. It is true that construction started in development. It should not be forgotten here 1989 but even then EIA could be conducted that the Supreme Court earlier had applied the with regard to remaining work of the dam so precautionary principle in various judgements that the possible adverse environmental effects to make a balance between environment and could be mitigated. But surprisingly Supreme development. For example, Vellore Citizens Court refused to apply EIA notifications of Welfare Forum vs. Union of India AIR 1996 1994 in Narmada dam case which indicated SC 2715 and Karnataka Industrial Areas that our Courts are favouring developmental Development Board vs. C. Kenchapa (2006) 6 initiatives of the governments without SCC 371 has been some of the cases wherein assessing their adverse effects on surrounding the Court applied principles of sustainable environment. development to defend cause of environment. Conclusion But in the Narmada dam case, the Supreme The foregoing discussion on decision of Court held “It appears to us that the Supreme Court on Narmda dam clearly

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exhibits that judiciary favoured construction of Stockholm Declaration on Human Narmada dam without bothering much about Environment 1972 and Rio Declaration on it’s adverse environmental consequences. Environment and Development 1992 into During eighties, there have been several domestic laws of India. The changing stance of judicial decisions of the Supreme Court Supreme Court on environmental related issues wherein it straightway gave priority to is a cause of concern in present era wherein environment protection. The development environmental deterioration has drawn process was considered secondary. Then came worldwide attention. Let us hope that Indian the time where development was considered judiciary in March of progress would not inevitable to resolve problems of under- forget to uphold the cause of environment employment and unemployment in India. The along with development. Supreme Court in such situation smartly References patched both the conflicting interests’ i.e. right of healthy environment of the citizens of this Paramjit S. Judge., 1997.Response to Dams country and right of development. It applied and Displacement in Two Indian States, principles of sustainable development as per Asian Survey, 37: 840 the international mandate to protect Prashant Bhushan., 2004.Supreme Court and environment. But the Narmda verdict of PIL: Changing Perspectives under Supreme Court reveals that it deviated from its Liberalization, Economic and Political earlier environment friendly approach. In Weekly, 1 May: 1770 Naramda verdict, the Supreme Court Kailash Thakur & Hans Raj Jhingta., 2005 straightway ignored the cause of environment Emerging Perspectives of PIL in and treated it secondary which it seldom did in Environmental Litigation: Current the past. The Supreme Court which has been Approach of the Supreme Court of India, the ardent supporter of environment made Maharishi Dayananda University Law environment and environmental rights, Journal X Part-II: 39 subordinate to development processes. The government of India is committed to protect Bina Srinivasan, 2001 Social Impacts of Large environment at international level. However, Dams, Economic and Political Weekly, the Supreme Court forgot the mandate of 27 Oct.: 4109 various International human rights documents Philippe Cullet, 2001.Sardar Sarovar Judgment which speak about protection and improvement and Human Rights, Economic and of environment. The Court failed to read Political Weekly, 5 May: 1504

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