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NARMADA BACHAO ANDOLAN V. UNION OF INDIA, AIR 2000 SC 3751

NARMADA BACHAO ANDOLAN V. UNION OF INDIA
AIR 2000 SC 3751

FACTS

When the decision to make the dam was taken, a dispute arose between Gujarat, Maharashtra and Madhya Pradesh over:

  1. The use and distribution of water
  2. The height of the dam

The GOI referred the dispute under s.4 of the Inter-State Water Disputes Act 1956.

The Water Dispute Tribunal (WDT) decided it in 1979 and determined the height of the dam at 455 ft. It directed Gujarat government to build the damn and pay relevant compensation to Maharashtra and Madhya Pradesh for compulsory land acquisition.

It also contained directions regarding submergence, land acquisition, and rehabilitation of displaced persons, including providing oustees with necessary civic amenities. It also allocated the quantum of utilizable water among the 3 states.

After the WDT decision, the dispute between the states was settled and Gujarat started on the process of constructing the dam. After the specifics were figured out, environmental clearance was required to be given by the Central Government to go ahead with the project.  There was a dispute between the Ministry of Environment and the Ministry of Water Resources about the clearance and was therefore, referred to the Prime Minister. A series of discussions took place in the PM’s Secretariat and after addressing concerns, the clearance was formally granted by PM in 1987.

 The Petitioners challenged the construction of the dam, the environmental clearance given by the PMO and the rehabilitation process.

CONTENTIONS

  1. The environmental clearance was given by the PM and not the Ministry of Environment and was invalid. Further argued that it was given without application of mind and needed to be reviewed.
  2. That more studies had to be conducted to assess if the dam was going to cause environmental harms and all associated risks had to be explained, and all precautions taken to mitigate those risks. (Precautionary Principle)
  3. They argued that an independent review needed to be conducted of the construction, land acquisition and rehabilitation processes.

They prayed that the construction should be stopped while more studies are conducted in lieu of the precautionary principle, and that no submergence should take place till every affected person has been completely rehabilitated.

ISSUE

Whether environmental clearance was given without application of mind?

Whether the precautionary principle applied in this case?

Whether an independent review committee should be set up to oversee rehabilitation process?

HELD

  • All the judges unanimously held that the fact that clearance was given by the PM and not the Ministry of Environment was no hindrance to the validity of it.
  • Further, they held that the claims that it was given without application of mind were untrue and unfounded.In fact, the clearance was postponed because the government required more information about the environmental aspects of the project before giving the go-ahead.Different studies were being conducted, and it is on the basis of that the government decided to give clearance. It is evident that they wanted environmental management plans to go on simultaneously with engineering plans.
  • The "precautionary principle' and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting project or industry where the extent of damage likely to be inflicted is not known. In this case, clearance has been given after weighing the pros and cons. Multiple studies and research projects have been conducted over the years to assess the project and its impact. The government is not denying the environmental damage in this case. Merely because there will be a change is no reason to presume that there will be an ecological disaster.  Further, in this case, there is a multifold impact. While there are negative impacts on the environment, the positive impacts are outweighing the same.
  • Where the effect of a project on ecology is known, the question becomes what steps can be taken to mitigate the damage. This is the principle of sustainable development and ensures that steps are taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation.
  • The precautionary principle, on the other hand, comes into play when the impact is unknown. When there is a risk of severe damage to the environment and the extent of it is now known, absence of any scientific or conclusive proof is not to be given as a reason for the inaction to mitigate impact.
  • The Court rejected that there needed to be an independent review committee formed.  The Tribunal award had already led to the creation of the ‘Narmada Control Authority’ which was coordinating and supervising the work of the project.It was also tasked with monitoring the relief and rehabilitation activities, including environmental safeguard measures necessary. There was an appeal mechanism established for oustees. Displaced persons aggrieved by the decisions of the rehabilitation officers could appeal their decisions.Gujarat government had also set up a Grievance Redressal Authority.This meant that government has taken all steps necessary for execution and implementation of the policy and the tribunal’s award and the court saw no grounds for judicial interference.
  • Based on the 1st and 3rd issues, the court held that there was limited scope of judicial review and interference in such cases.  There was enough evidence to show that clearance had been given after application of mind, and thus warranted no judicial review.The court reiterated the role of higher judiciary as a sentinel who must defend the Constitution and rights of citizens. This did not empower it to interfere with and dictate policy decisions being taken by legitimate government in a reasonable manner.
  • The court also held that when a valid award is given by the Tribunal, then it is binding on the parties involved.If there are any issues involved with the award, then only the states can challenge the same. 3rd parties, like the present petitioner, have no locus to challenge this award. Further, the Court would have no jurisdiction to review the merits decided by the Tribunal, like the height of the dam. The State of Gujarat has a right to build the dam after the award of the Tribunal and the displaced persons have a right to demand relief and rehabilitation.
  • The court also emphasized on the delay by petitioners in filing the petition.The organization has existed since 1986. Tribunal award was given in 1978. Clearance was given in 1987. However, only after construction has started and hundreds of crores have been invested that petitioners decided to file petition in 1994 for the first times.There is an unreasonable delay in filing and relief should be barred. However, decided to review the case because rights of persons displaced and in need to rehabilitation were involved.J. Bharucha dissented and held that this is a project with big environmental consequences and when public interest is so demonstrably involved, then relief should not be declined only on basis of delay.
  • An appeal was filed by the petitioners in the matter and the court upheld the previous judgement.