Narmada Bachao Andolan v Union of India (2000)

Vellore said that the precautionary principle applies in India and reverses the burden of proof. Narmada is the case that asks when it applies — and answers that it does not apply where the environmental effect of a project is already known.

That single distinction is the most examinable point in the whole of Module 2, because it is the limit on the doctrine, and chapter 5 is built around it. The case also supplies:

• the leading Indian statement on judicial review of a policy decision to build a large dam;
• the Court's treatment of displacement and rehabilitation as an environmental question;
• a pari passu remedy — construction permitted stage by stage, each stage conditional on rehabilitation and environmental clearance; and
• a powerful dissent by Bharucha J. that would have stopped construction until a proper environmental impact assessment was made.

The Central Water and Power Commission studied the hydroelectric potential of the Narmada basin in 1955, and the Navagam site was chosen for the dam. Implementation was first contemplated in two stages, the full reservoir level restricted to 160 ft in Stage I with foundations wide enough to raise it to 300 ft in Stage II. A panel of consultants appointed by the Ministry of Irrigation and Power reported in 1960 that the two stages "should be combined into one and the dam be constructed to its final FRL 320 ft in one stage only".

In November 1963 the Union Minister of Irrigation and Power met the Chief Ministers of Gujarat and Madhya Pradesh at Bhopal and the Bhopal Agreement was reached: the Navagam Dam to be built to FRL 425 by Gujarat with its benefits to Gujarat; the Punasa Dam to FRL 850 with costs and power shared 1:2 between Gujarat and Madhya Pradesh; and the Bargi Project by Madhya Pradesh.

The dispute went to a Tribunal under the Inter-State Water Disputes Act 1956. The Tribunal held on 23 February 1972 that the constitution of the Tribunal and the reference of the Narmada water dispute were not ultra vires, though the reference of Rajasthan's complaint was. It declared its award on 16 August 1978 under s. 5(2) read with s. 5(4), and after references under s. 5(3) gave its final order on 7 December 1979, published in the Gazette on 12 December 1979.

The machinery created by the award — learn these three bodies, they recur throughout the judgment:

| Body | Composition and role | |---|---| | Narmada Control Authority (NCA) | An inter-State administrative authority "for the purpose of securing compliance with and implementation of the decision and directions of the Tribunal"; a high-powered body chaired by the Secretary, Ministry of Water Resources, with Secretaries of Power, Environment and Forests and Welfare, the four Chief Secretaries and technical members | | Review Committee | Chaired by the Union Minister for Water Resources with the Chief Ministers of Madhya Pradesh, Maharashtra, Gujarat and Rajasthan; may review decisions of the NCA and of the Construction Advisory Committee | | Sardar Sarovar Construction Advisory Committee | Headed by the Secretary, Ministry of Water Resources, "for ensuring efficient, economical and early execution of the project" |

The Narmada Bachao Andolan had led the agitation against the dam. A Five-Member Group headed by Dr Jayant Patil was constituted by office memorandum of 3 August 1993 to continue discussions with it. On 22 February 1994 the Ministry of Water Resources decided on closure of the construction sluices, and ten construction sluices were closed on 23 February 1994. The writ petition was filed in April 1994, praying that the respondents be restrained from proceeding with the construction and be ordered to open the sluices.

The environmental clearance for the project had been given in 1987. The petitioner's case was that it was granted without the data required and without a proper impact assessment.

The majority's answer rests on the state of the law in 1987:

"In India notification had been issued under Section 3 of the Environmental Act regarding prior environmental clearance in the case of undertaking of projects and setting up of industries including the inter-State river project. This notification has been made effective from 1994. There was, at the time when the environmental clearance was granted in 1987, no obligation to obtain any statutory clearance."

The 1987 clearance was therefore "essentially administrative in nature, having regard and concern for the environment in the region".

And on Art. 21: "Change in the environment does not per se violate any right under Article 21 of the Constitution of India especially when ameliorative steps are taken not only to preserve but to improve the ecology and environment and in case of displacement, prior relief and rehabilitation measures take place pari passu with the construction of the dam."

The Court dealt with the American authority pressed on it, Sierra Club v Robert F. Froehlke, where the District Court enjoined further construction of the Wallisville Project for failure to satisfy "full disclosure requirement of NEPA". The argument was that although there was no NEPA in India in 1987, the principle should apply "by virtue of Stockholm Convention and Article 21 of the Constitution". The majority declined, because there was no statutory clearance requirement in India at the time.

This is the heart of the case. The Court began from A.P. Pollution Control Board v Prof. M.V. Nayudu, where consent was refused to a BSS castor oil derivatives unit in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. In Nayudu the Court had relied on Vellore and "observed that there was a new concept which places the burden of proof on the developer or industrialist who is proposing to alter the status quo and has become part of our environmental law". It noticed that "inadequacies of science had led to the precautionary principle" and that the principle "in its turn had led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed is placed on those who want to change the status quo", quoting the International Law Commission:

"The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment."

Then the limiting proposition. Quote this paragraph; it decides the case and it is the answer to every question on the scope of the precautionary principle:

"It appears to us that 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 or other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of" damage or pollution likely to be caused, "in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution." "On the other hand where the effect on ecology or environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to offset the same. Merely because there will be a change is no reason to presume that there will be an ecological disaster."

And the relation to sustainable development: "It is when the effect of the project is known that the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance." The Court then gave its own working definition: "Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation."

The application. "In the present case we are not concerned with the polluting industry which is being established. What is being constructed is a large dam. The dam is neither a nuclear establishment nor a polluting industry." Construction would change the environment, "but it will not be correct to presume that the construction of a large dam like the Sardar Sarovar will result in an ecological disaster". India, the Court said, "has an experience of over 40 years in the construction of dams", and "What is the impact on environment with the construction of a dam is well known in India"; therefore Nayudu "will have no application in the present case".

The doctrine to carry away, in one table:

| Situation | Which principle governs | Where the burden lies | |---|---|---| | Extent of damage not known; uncertainty from lack of data | Precautionary principle | On the industry or unit likely to pollute, to show the balance will be maintained | | Effect on ecology known | Sustainable development | Ordinary; the question is what mitigative steps offset the harm |

The Court treated displacement as inseparable from the environmental question. Its reasoning is candid and contested, and both should be reproduced:

"It is a fact that people are displaced by projects from their ancestral homes. Displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions, but then it becomes necessary to harvest a river for the larger good."

The obligation is therefore to plan: the moment a village is earmarked, the project authorities "have to implement R&R programmes", specially drafted "to mitigate problems whatsoever relating to all, whether rich or poor, landowner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal". "A properly drafted R&R plan would improve the living standards of displaced persons after displacement." The stated object is that "those who move must be better off in the new locations at government cost", and on the material before the Court the Gujarat packages were such that "the living conditions of the oustees will be much better than what they had in their tribal hamlets".

On forests the Court acknowledged that "The loss of forest because of any activity is undoubtedly harmful" and that "large dams cause submergence leading to loss of forest areas", but balanced this against conversion of wasteland to agricultural land: "Large dams can also become instruments in improving the environment".

The limiting principle on the Court's own jurisdiction is stated shortly and is quotable in administrative law as well:

"In a democratic set-up, it is for the elected Government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken then unless and until it can be proved or shown that there is a" "blatant illegality in the undertaking of the project or in its execution, the court ought not to interfere with the execution of the project."

The Court said two conditions governed the directions: "(i) the completion of the project at the earliest, and (ii) ensuring compliance with the conditions on which clearance of the project was given", including relief and rehabilitation and ameliorative measures, "thereby protecting the rights under Article 21 of the Constitution".

1. "Construction of the dam will continue as per the award of the Tribunal."
2. Construction up to 90 metres may be undertaken immediately, the R&R Subgroup having cleared it. "Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation measures" and on the Subgroup's clearance after consulting the three Grievance Redressal Authorities.
3. The Environment Subgroup under the Secretary, MoEF, to give environment clearance at each stage before construction beyond 90 metres.
4. Permission to raise the height beyond 90 metres to be given by the NCA after those clearances.
5. Noting the considerable slackness recorded in the reports of the Grievance Redressal Authorities in identifying and acquiring land, the States of Madhya Pradesh, Maharashtra and Gujarat were directed to implement the award and give relief and rehabilitation in terms of their packages.
6. NCA and the Environment Subgroup "will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment".
7. NCA to draw up an action plan within four weeks fixing a time-frame "so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam".
8. The Review Committee to meet at least once in three months; unresolved differences on the award may be referred to the Prime Minister, whose decision "shall be final and binding on all concerned".
9. The Grievance Redressal Authorities may issue directions to the States and approach the Review Committee on non-implementation.
10. "Every endeavour shall be made to see that the project is completed as expeditiously as possible."

Bharucha J. agreed that the project need not be re-examined for cost-effectiveness, that seismicity had been sufficiently examined, and that canal oustees and reservoir oustees "fall in different classes". He differed on the environmental clearance, holding that the clearance of 1987 was given without the necessary data and that the deficiency had to be cured before construction continued.

His directions would have been:

1. The Environmental Impact Agency of the MoEF to appoint forthwith a Committee of Experts in the fields mentioned in Schedule III of the Notification dated 27 January 1994, the Environmental Impact Assessment Notification 1994.
2. The Committee "shall gather all necessary data on the environmental impact of the project", free to commission surveys and to consider existing ones.
3. On that data the Committee to "assess the environmental impact of the project and decide if the environmental clearance to the project can be given and, if it can, what environmental safeguard measures must be adopted, and their cost".
4. To take into account that construction had already commenced.
5. "Until environmental clearance to the project is accorded by the Committee of Experts as aforestated, further construction work on the dam shall cease."
6. The Grievance Redressal Authorities to ensure relief and rehabilitation "in due measure".
7. On clearance, each Authority to certify before further construction that all those ousted by a 5 metre increase are already satisfactorily rehabilitated and that suitable vacant land is already in the possession of the State for those to be ousted by the next 5 metres.
8. "This process shall be repeated for every successive proposed 5 metre increase in the dam height."
9. If the project cannot proceed, rehabilitated oustees to have the option to remain where rehabilitated or to return, "and they shall not be made at all liable in monetary or other terms on this account".

On delay he said: "when the public interest is so demonstrably involved, it would be against public interest to decline relief only on the ground that the Court was approached belatedly".

Why the dissent matters for the exam. It is the counterweight to the majority's reasoning on the precautionary principle. Bharucha J. does not dispute that the effect of dams is generally known; he says that the effect of this dam was never properly assessed, so the deficiency is not scientific uncertainty but procedural failure. A question asking you to criticise Narmada is asking for this distinction.

1. The precautionary principle and the reversed burden of proof apply where the extent of the likely damage is not known; where the effect on ecology is known, the question is what mitigative steps will offset it, and sustainable development governs.
2. A change in the environment does not per se violate Art. 21 where ameliorative steps are taken and relief and rehabilitation proceed pari passu.
3. The choice of project is for the elected Government; the Court will not interfere absent blatant illegality in the undertaking or execution.
4. The statutory requirement of prior environmental clearance dates from the 1994 Notification; a clearance given in 1987 was administrative and cannot be tested against a later statutory standard.