October 19, 2001


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Dilip D'Souza

Why They Call It a Black Day

I remember precisely where I was when I heard the news of October 18, 2000: In the front seat of a taxi, struggling through traffic on Bombay's Pherozeshah Mehta Road. I caught sight of a journalist friend dodging the cars, going somewhere in a great hurry. Leaning out of my window, I called her name. She turned, saw me, and I can still remember her voice as it floated above the general noise on that generally noisy street: "Haven't you heard? The Supreme Court has dismissed the Narmada case!"

I can still remember sitting back suddenly in my seat, the breath knocked out. I can still remember the feeling of desolation that I tried to shake all of that day.

Looking back on that day a year later, I know: whatever I write about the decision will seem like sour grapes. Thing is, I read the Narmada judgment expecting to disagree with it -- that was clear. But at least, I thought, it must be a carefully argued, logically thought out decision. So I wanted to read that argument and logic. If that was what I was expecting, I really should not have read the judgment. You might say, again, "sour grapes". Still, bear with me through just two interesting aspects of this judgment.

Take first the court's treatment of the Morse Report. Because of widespread protests against the Sardar Sarovar project in the late 1980s, the World Bank -- then funding the project - appointed Bradford Morse to head a commission to review the project in 1991-92. While conducting their review, Morse and his colleagues had full and generous cooperation from the governments concerned [the report explicitly acknowledges this cooperation]. I mention this only to point out that the governments could hardly claim that Morse did not hear their case, which they might otherwise have done, since the Morse Report is extremely critical of the project.

The Narmada Bachao Andolan, which filed the case in 1994, supported its arguments in part by referring to the Morse Report.

No doubt the court -- any court -- is at liberty to accept or throw out evidence as it sees fit. Courts are supposed to take decisions like that and the Morse Report is no exception. Since it was presented as evidence, I would have expected my Supreme Court to consider the findings of the report and then decide whether to accept them. Given my feelings about dams and about Sardar Sarovar in particular, given my opinion of the Morse Report, certainly I would have liked the court to accept its findings. But I hardly believe that everybody in the world must agree with the Morse Report just because I do. I am quite willing to believe the court would have, on reading the report, found no merit in it.

The vital words in that last sentence being, "on *reading* the report".

In the majority judgment that decided the case, Justice B N Kirpal observed: The Government ... did not accept the [Morse] Report and commented adversely on it. In view of the above, we do not propose, while considering the petitioners' contentions, to place any reliance on the report of the Morse Committee.

But the Government of India was itself the first respondent in the case! This positively baffles my non-lawyerly mind. How can a respondent's view of evidence that is critical of that respondent be allowed to decide whether a court considers such evidence at all? After all, if you are a murderer facing trial, and the prosecution produces a murder weapon as evidence, would it be OK for you to tell the court: 'I don't like that gun. Please do not consider it as evidence.' Would it be OK for the court to pay heed to you and throw the gun out without examining it?

I read the judgment very carefully, looking for a sign that the court had rejected the Morse Report for more tangible reasons. I found none. The government's mere dislike of the report appeared to have been good enough.

And yet, elsewhere in the judgment, Justice Kirpal quotes approvingly from another report -- one he doesn't name -- by the World Bank. He says: The cost and benefit of the project were examined by the World Bank in 1990 and the following passage speaks for itself:

"The argument in favour of the Sardar Sarovar Project is that the benefits are so large that they substantially outweigh the costs of the immediate human and environmental disruption. ... [etc]."

So from this judgment, we learn that a World Bank report that assesses the potential of the SSP and concludes that its benefits will outweigh costs is acceptable to the court and, we can presume, the Government of India. But another, and later, World Bank report of an actual *review* of the project as it stood at the time, a report that severely criticises the project, is rejected by the government. For that reason and that reason alone, it is also rejected by the court.

So is it only reports that praise the project that are acceptable? When the court has been asked to consider the pros and the cons of the project and make a decision, what does it mean to accept the evidence that praises, but to throw out the evidence that damns?

After all, consider this revealing sentence -- one among many - from the Morse Report: The Sardar Sarovar Projects are likely to perpetuate many of the features that the Bank has documented as diminishing the performance of the agricultural sector in India in the past.

Is there any reason a court that is examining the dam should treat this excerpt from one World Bank report with any less (or more, for that matter) seriousness than an excerpt from another World Bank report that I quoted some paragraphs earlier?

Take, second, the meaning of pari passu. This curious little term has been part of the verbiage surrounding the project ever since it began. It means "equal pace or progress; side by side" (Random House). In giving the project its environmental clearance in 1987, Indian authorities decided to let it meet various requirements pari passu with the construction of the dam.

Justice Kirpal notes that the project was given "conditional environmental clearance ... on the condition that 'the catchment area treatment programme and rehabilitation plans be drawn so as to be completed ahead of reservoir filling' [quote from the 1987 letter that gave the clearance to the project]."

Note: this is not pari passu, but "completed ahead".

But in the *very next paragraph* Justice Kirpal observes: "The [project authorities] had proceeded on the basis that the requirement ... that catchment area treatment programme and rehabilitation plans be drawn up and completed ahead of reservoir filling would imply that the work was done pari passu, as far as catchment area treatment programme is concerned, with the filling of the reservoir."

More bafflement, and shades of Orwell and 1984 as well: "completed ahead" has been taken to "imply that the work was done pari passu". The dam builders were required -- not urged or advised, but *required* -- to complete one thing before doing another, but they simply assume that this *itself* means they can do the two things side by side.

How did that happen? Worse, how did the justices of the Supreme Court let this pass? How was it treated as anything other than a violation of the clearance -- the conditional clearance -- given to the project?

Believe me, the judgment is riddled with oddities like these two. If I had to explain them all, you would have a thesis on your hands, not this weekly column. Yet even these two should tell you -- and I mean particularly you who believe that that dam must be built -- something of the strange logic that runs through the judgment.

If a massive dam needs strange logic so it can be built, that is alarming indeed.

Dilip D'Souza

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