LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

Whether Development Is On a Higher Footing Than The Preservation Of The Environment: A Modern Indian Perspective

Abstract
The 21st Century has been termed by many as the Century of Development, of human and scientific advancements and widespread progress. The pace at which technology has changed and developed is indeed commendable and makes life easier, convenient and much more luxurious than before. In this run for Technological advancements, however, the Environment is on the back-foot. The merits of technological and industrial developments need to coincide with environmental progress and preservation, for the Development to sustain.

By means of this paper the authors would like to bring forth the above mentioned aspect of Development with consideration to the Environment. To prevent environment from being on a lower footing, the Authors have presented herein an Indian Supreme Court Decision highlighting the importance of environmental protection in the unruly and blind attainment of Industrial Development. The authors have tried to holistically bring out the important aspects of each of the three cases, and have in doing so, also provided for original arguments justifying their respective stands. The paper also highlights the importance and relevance of Sustainable Economic Development in the Modern Indian Context by bringing in the cases which aptly summarize the attitude of the Judiciary towards the Environment in this regard. The case also holds utter importance because of the enormous public outcry they demanded. The case has been selected so as to provide for a more realistic and holistic picture of the kind of Environmental violations that Industrial houses tend to, in the run for Industrial Development. The authors hope to have justified the theme of the paper by their research and originality in presenting forth their independent views. All views so presented are solely that of the Authors and are not of any other person or entity, and are based on the interpretation of various statutes and findings by the Authors. All findings are genuine and due credit has been given to each and every source.

Case Analysis: Narmada Bachao Andolan V. Union of India & Ors, Air 2000 Sc 3715

Big Dams are to a nations development what nuclear bombs are to its military arsenal. Theyre both weapons of mass destruction. Nobody builds Big Dams to provide drinking water to rural people. Nobody can afford to. - Arundhati Roy Water today has become a source of conflict because it is a life sustaining resource. The excessive use of water, over exploitation of water resources, unequal access to water to different groups. Social awakening movements have been in rage since time immemorial. The broader aim of these movements was development of society. Some of the well-known mobilizations that took place in India are: The Chipko movement, Narmada Bachao Andolan, Chattisgarh Mukti Morcha, the movement supporting Anna Hazare etc. These movements distanced themselves from politics or political parties to whatever extent they could. Interstate water dispute stands at the juncture of two fields of law: federalism under constitutional law, and water law. Because India is a federal democracy1, and because rivers cross state boundaries, constructing efficient and equitable mechanisms for allocating river flows has long been an imperative legal and constitutional subject. The provisions of the Constitution relating to interstate water dispute give a good instance of co-operative federalism. In India water is primarily falls under State list, except in case of interstate rivers where the Central government can intervene. However, powers of the river board created under River Boards Act, 1956 only have advisory powers. There have been instances where States have refused to accept the decision of tribunals rendering the arbitration not binding, which makes the Indian water dispute settlement mechanisms further ambiguous and opaque. The main disagreement is over the cost of the projects and sharing of benefits of the multipurpose river projects. The main point of contention is that downstream state's objection to pollution, excessive irrigation and construction of dams by the upper streams states which might then control the quantity of water flowing to the downstream state. This leads to disputes between the states.
1

Mathur, B P. Governance Reform For Vision India, 1st ed. New Delhi: Macmillan India Ltd., 2005.

India has 14 major rivers that are inter-state rivers and 44 medium rivers of which 9 are interState rivers. For the reason that India is a federal democratic system, and because rivers cross state boundaries, constructing proficient and equitable mechanisms for allocating river flows has long been a significant legal and constitutional question. Many inter-state river-water disputes have erupted since independence. On the face of it, inter-state water disputes involve issues of: (i) Allocation of waters between different states; (ii) Apportionment of construction costs and benefits if a project is developed jointly by more than one state; (iii) Compensation to the states prejudicially affected by the implementation of a project by another state; (iv)Dispute settlement relating to interpretation of agreements and; (v) Excess withdrawals by a state

The Relevant Provisions in The Present Indian Constitution: Entry 17 in the State List, Entry 56 in the Union List, and Article 262. Entry 17 of List II makes water a state subject, but qualified by Entry 56 in the Union List, which empowers Union regarding the regulation and development of inter-state rivers and river valleys to the extent to which such control of the Union is declared by parliament by law to be expedient in the public interest. In addition to this, Article 262 explicitly grants right to legislate to parliament over the matters in Entry 56, and also gives it primacy over the Supreme Court. Various River Authorities have been proposed, but not legislated or established as bodies vested with powers of management. Instead, river boards with only advisory powers have been created. Article 262 states as follows:

(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-state river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). Parliament has enacted two laws under the above provisions: 1) River Boards Act of 1956- This Act was made for setting up of river boards by the Central Government at the request of the interested parties. 2) Inter-State Water Disputes Act of 1956 Under this Act, in case of a dispute, the affected State is empowered to request the Central government to refer disputes relating to the use, distribution, or control of Inter-State river waters for adjudication by tribunal constituted under the Act. In addition to this, if the Central Government feels that the water dispute referred to it cannot be settled by negotiations, then it can refer the dispute for adjudication by a tribunal constituted under the Act. The tribunal shall then investigate the complaint and forward a report to the Central government known as order or award of the tribunal. Within three months of the report, the Central Government or any of the State Government concerned can approach the tribunal for clarification. The Central Government shall publish the tribunals decision in the official gazette, and then the decision will be final and binding on the parties to the dispute. Neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any water dispute referred to a tribunal. Besides this, National Water Policy of 1987 also dealt with distribution of water amongst the states. Water being a State subject, it is necessary that the initiative and responsibility for Development of inter-state rivers and river valleys should primarily rest on the State government. Experience, has, however, shown that the river valley projects have been considerably hampered in the past by the conflict of interests among different state governments. While it is necessary to ensure that the powers of State governments in relation to inter-state rivers and river valleys remain unaffected, it is also necessary to make suitable provision for resolving conflict among the State governments and for achieving maximum results in respect of conservation, control and optimum utilization of water resources of interstate rivers.

Certainly, there can be post-award disputes too, for instance, the dispute between Andhra Pradesh on the one hand and Karnataka and Maharashtra on the other regarding what is known as the Telgu-Ganga Project. One instance in which the process of conflict-resolution has not worked is the case of the RaviBeas waters, where the tribunals award stands stalled and seems un-implementable in the foreseeable future. Even here it must be remembered that there were two earlier inter-state agreements regarding Ravi-Beas waters, and that the present stalemate on this issue is one of the consequences of larger Punjab problem. The most recent and controversial example of inter-state water dispute is the one between Karnataka and Tamil Nadu regarding Cauvery waters2. Unfortunately, the issue has become highly politicized. The governments of two states have adopted public postures, which have rendered a negotiated settlement difficult and soured relationship. The Inter-State Water Disputes Act, 1956 itself, while it enables one of the states concerned to request the centre to establish a tribunal, requires the central government to satisfy itself that a dispute exists and that it cannot be settled through negotiations, before it establishes a tribunal. Article 262 of the Constitution and the ISWD Act 1956 enacted under it are important components of our federal structure. In terms of these provisions the award of a tribunal set up under the ISWD Act is final and binding on the states concerned, and there can be no appeal to Supreme Court against such an award, though there is a procedure for reference back to the tribunal within a limited period of time. This was clearly intended to obviate protracted interstate litigation on river waters and the consequent prolongation of the dispute. It follows that the award of such a tribunal is virtually a decision by the Supreme Court. However, in recent years a disturbing element has emerged in this regard in form of lack of respect shown to these constitutional and statutory provisions. If the award of the tribunal is indeed final and binding, there can be no question of its being rejected; but this was precisely what happened in the case of the Ravi-Beas dispute in which the Punjab Government rejected the award. Similarly, in the case of the Cauvery dispute the Tribunals interim order was sought to be nullified by the Karnataka government through an Ordinance.

Though Kerala and Pondicherry are also parties to the dispute, because of the intractable stance taken by Karnataka and Tamil Nadu the dispute is primarily between these two States.

Narmada Bachao Andolan (NBA) is a social movement comprising of farmers, adivasis, environmentalists, activists protesting against the implementation of the Sardar Sarovar Project (SSP) on the river Narmada.

1947-1979- Formative Years. A first study about a "Narmada Valley Development Project" started in 1947. The aim was to provide large amounts of water and electricity that "are desperately required for the purposes of development". The Award of the Narmada Water Disputes Tribunal in 1979, disputes about what to construct where, were arguments among three, and later four, state governments within India. This lengthy dispute took place amongst the following states namely; Gujarat, Madhya Pradesh, and Maharashtra. Its first intervention was creation of the Narmada Water Resources Development Committee, a committee of eminent hydrological engineers. They were particularly asked to examine the site and height of the proposed dam at Navagam in relation to alternative projects, mainly hydroelectric dams that Madhya Pradesh wanted to build because their feasibility depended on the extent of the reservoir created behind any dam at Navagam. The committee ultimately recommended in favor of the relatively high dam preferred by Gujarat, in part because it would allow extending irrigation systems into the dryer districts of Rajasthan and Gujarat, areas then prominent in politicians and officials minds because Pakistani troops had intruded into India during April 1965 through one of the dryer parts of Gujarat. Though the Khosla Committee's report was ultimately rejected, it shaped later discussion by considering the Narmada and its tributaries as one system and arguing for a "national approach" to water resources that would justify extending irrigation canals to areas outside the Narmada basin. A combination of failure to resolve the dispute by direct discussions among the state governments involved and serious drought in western India caused by failure of the monsoons in 1965-66 and 1968-1969 led Gujarat, where the drought was particularly severe, to ask for central government involvement. It formally invoked the Inter-State Water Disputes Act 1956 and asked the central government to form a water disputes tribunal to settle the contentions over Narmada projects. The Act specifies that water disputes tribunals are special three-

member panels, consisting of a current member of the Supreme Court and two other Supreme Court of High Court judges, whose awards are final when the states involved accept them.3 The Narmada tribunal was announced in May 1969; its members Supreme Court Justice V. Ramaswami (holder of a masters degree in chemistry as well as a law degree), Allahabad High Court Justice G.C. Mathur and retired chief justice of Kerala V.P. Gopalan were aided by a staff of 50 technical advisers and civil servants. The need to address various procedural challenges, mostly from Madhya Pradesh, meant it did not start considering the substantive issues until February 1972. After another delay inspired by Prime Minister Indira Gandhis efforts to mediate the dispute, the Tribunal resumed work in August 1974. Between 1974 and December 1979 when it issued its report, the Tribunal held no public hearings or other consultations with any stakeholders (including politicians from the disputing states); such procedures were not the norm in India at the time and no one raised the issue. Rather, it operated like court, with the states presenting their arguments through lawyers, examination and cross-examination of expert witnesses, and visits to various sites along the Narmada in the company of their technical experts. The Narmada Water Disputes Tribunal Award (NWDT Award) set out a plan for construction of 30 major dams, 125 medium dams, and 3000 small dams at various locations on the Narmada or its 41 tributary rivers plus a 532 km (329 mile) canal from the reservoir that would be created by the dam at Navagam through Gujarat and into Rajasthan. It accepted construction of a high large dam at Navagam, as Gujarat proposed, but determined that it should be 455 feet (138.7 meters) high rather than the 530 feet (162 meters) urged by Gujarat. Other terms of the Tribunal's Award reflected efforts to balance benefits and costs among the four participating states. Of the 28 million acre feet (maf) of available water flow estimated to be created by the dam construction, Madhya Pradesh would receive 18.25 maf (65.2%); Gujarat, 9 maf (32.2%); Rajasthan, 0.5 maf (1.7%); and Maharashtra, 0.25 maf (0.9%). The estimated hydroelectric production would be divided on the formula of 57% to Madhya Pradesh, 27% to Maharashtra, and 16% to Gujarat. Though on hydrological calculations four fifths of the Narmada's flow is within Madhya Pradesh, Gujarat was allocated a somewhat larger than proportional share of water on grounds that it needed water much more than Madhya Pradesh or Maharashtra because they can also draw on other rivers whereas Gujarat
3

Inter State Water Disputes Act 1956, Inter State Water Disputes Act 1956, Section 6 (Publication of Decision of Tribunal) subsection 1 (subsection 2 incorporates the 2002 amendment).Text available at Http://mowr.gov.in/index3.asp?sslid=385&subsublinkid=377&langid=1 (accessed 11 August 2010).

only had the Narmada. Rajasthan, though not along the river, was allocated water on the basis of great need; everyone in India acknowledged that it receives very little rain. Madhya Pradesh and Maharashtra were given larger shares of electricity than their current populations might suggest to make up for the fact that the height of the dam at Navagam would prevent them from building their proposed Jalsindhi hydroelectric dam because the area would be flooded by the reservoir created by the Navagam dam.4 To address the uncertainties involved in allocating shares of water, the tribunal included a provision that the water apportionment would be subject to review in 2025. Detailed design, construction, operation, and maintenance of the Narmada River system would be undertaken by the state governments, each on its own stretch of the river. Gujarat and Madhya Pradesh established public corporations for this purpose: Sardar Sarovar Narmada Nigam Limited (SSNNL) in Gujarat and the Narmada Valley Development Authority (NVDA) in Madhya Pradesh. The fact the river flows between states provided the legal basis for the tribunal's decision to set up the Narmada Control Authority, employing both government of India and state engineers and civil servants to coordinate and monitor finance, construction, and resettlement of people whose homes would be flooded by the reservoirs (oustees). The central government also had some control over the details of the projects through the Central Water and Power Commission, the Planning Commission, and the Ministry of Environment and Forests, each of which had authority to grant or withhold clearance for proceeding with various aspects of project construction. The NWDT Award did not end all the argument Gujarat and Madhya Pradesh continued to disagree about the height of the dam to be built at Navagam, now named the Sardar Sarovar Dam, and hence the size of the reservoir to be created. However, those arguments were soon overshadowed by controversies over treatment of the oustees and environmental impacts of the whole Narmada River project. The resistance against the dam in the form of the Narmada Bachao Andolan started with the beginning of the works in 1987. The main issue for critics and debate is the "Rehabilitation and Resettlement"- (R&R) policy. According to the Narmada Water Dispute Tribunal (NWDT), every project-affected family (PAF) should be given land one year prior to the submergence of their land and be rehabilitated completely. According to the Narmada Water Dispute Tribunal (NWDT), every project-affected family (PAF) should be
4

Narmada Water Disputes Tribunal. 1979. Report of the Narmada Water Disputes Tribunal with its Decision. 5 vols. New Delhi: Controller of Publications. The shorter terms of the Award, dated 7 December 1979, and published in the Official Gazette on 12 December 1979 are available at http://nca.gov.in/forms_pdf/nwdt_finalorder.pdf

given land one year prior to the submergence of their land and be rehabilitated completely. The latest official estimates from the three states add up to 41,500 PAFs, or 207,500 people, around 80% of them in Madhya Pradesh. Almost all the PAPs in Gujarat and Maharashtra and perhaps half of those in Madhya Pradesh are adivasis, or indigenous peoples. Large numbers of poor and underprivileged communities are being dispossessed of their livelihood to make way for dams being built on the basis of dubious claims of common benefit and "national interest". For no large dam in India has it been shown that the resettled people have been provided with just compensation and rehabilitation. Two major actions took place in early 1989. There were protests against the Official Secrets Act that was clamped in the ten villages around the dam site on January 30, 1989. And then on February 22, 1989, there was a storming of the dam site by about 10,000 people from Nimad and the tribal areas. The Gujarat government was caught unawares. The new slogan of "Koi nahin hatega, bandh nahin banega!" ("No one will move out, the dam will not be built") became a mantra for the fight against displacement. By this time, the people's opposition to the dam and their displacement had crystallized into a two-point program. First, non-cooperation with all dam related work; secondly, a firm determination not to move out of their land and villages. The latter was symbolized by yet another popular slogan, "Doobenge, par nahin hatenge!" ("We will drown, but shall not move") Led by one of the prominent Social Activist Medha Patkar, it has now been turned into the International protest, gaining support from NGO'S all around the globe. Protestors are agitating the issue through the mass media, hunger strikes, massive marches, rallies and the through the on screen of several documentary films. Although they have been protesting peacefully, but they been harassed, arrested and beaten up by the police several times. In 1969, after years of negotiations attempting to agree on a feasible water-sharing formula, the Indian government established the Narmada Water Disputes Tribunal. Ten years later, it announced its award. The Narmada Water Disputes Tribunal Award states that land should be made available to the oustees at least 1 year in advance before submergence. Before the Ministry of the Environment even cleared the Narmada Valley Development Projects in 1987, the World Bank sanctioned a loan for $450 million for the largest dam, the Sardar Sarovar, in 1985. In actuality, construction on the Sardar Sarovar dam site had continued sporadically since 1961, but began in earnest in 1988. Questions arose concerning the promises about resettlement and rehabilitation programs set up

by the government, so by 1986 each state had a peoples organization that addressed these concerns. Soon, these groups came together to form the Narmada Bachao Andolan (NBA). The Narmada Valley is a long hill range in the state of Madhya Pradesh and forms downstream the border between Gujarat and Maharashtra. The Narmada River flows westwards into the Arabic Sea. A first study about a "Narmada Valley Development Project" started in 1947. The aim was to provide large amounts of water and electricity that "are desperately required for the purposes of development". It has grown to a project comprising 30 large dams, 135 medium and 3000 small dams. According to a first plan from 1959 the biggest dam should be the "Sardar Sarovar Project" (SSP). But full-scale construction of this dam did not start before 1987. Some of the debatable characteristics of the SSP were: Provision of irrigation and electricity facilities to the economically prosperous and politically powerful regions of South and Central Gujarat, while displacing politically marginal adivasi subsistence peasants in Maharashtra and Madhya Pradesh. For facts, adivasis constitute only 8% of the total national population, but they represent 40% of the people who were displaced by construction of dams in India since 1947.5 With the similar objective of speeding up the process of development, idea of tapping the waters of river Narmada, which is the largest river of peninsula India, flowing through three states of Madhya Pradesh, Maharashtra and Gujarat, was conceived and consequently of the Narmada Valley Project to execute the same. The Narmada River, on which the Indian government plans to build some 3,200 dams, flows through three states: Madhya Pradesh, Maharashtra, and Gujarat. Ninety percent of the river flows through Madhya Pradesh; it skirts the northern border of Maharashtra, and then flows through Gujarat for about 180 kilometers before emptying into the Arabian sea at Bharuch. Plans for damming the river at Gora in Gujarat surfaced as early as 19466. In fact, Prime Minister Jawaharlal Nehru laid the foundation for a 49.8-meter-high dam in 1961.7 After studying the new maps the dam planners decided that a much larger dam would be more profitable. The only problem was hammering out an agreement with neighboring states (Madhya Pradesh and Maharashtra).emptying into the Arabian Sea at Bharuch.

5 6

http//:www.censusindia.gov.in Paragraph 1 of the Judgment of the present case. 7 Jawaharlal Nehru, Prime Minister of India, Address at the 29th Annual Meeting of the Central Bureau of irrigation and Power (Nov. 17, 1958).

In author Arundhati Roys opinion It is the most balanced, unbiased, yet damning indictment of the relationship between the Indian State and the World Bank. Two months later, the Bank sent out the Pamela Cox Committee. It suggested exactly what the Morse Report advised against: a sort of patchwork remedy to try and salvage the operation. Eventually, due to the international uproar created by the Report, the Bank withdrew from the Sardar Sarovar Project. In response, the Gujarat government decided to raise $200 million and push ahead. Before the Ministry of the Environment even cleared the Narmada Valley Development Projects in 1987, the World Bank sanctioned a loan for $450 million for the largest dam, the Sardar Sarovar, in 1985. In actuality, construction on the Sardar Sarovar dam site had continued sporadically since 1961, but began in earnest in 1988. Questions arose concerning the promises about resettlement and rehabilitation programs set up by the government, so by 1986 each state had a peoples organization that addressed these concerns. Soon, these groups came together to form the Narmada Bachao Andolan (NBA), or, the Save the Narmada Movement. In September 1989, more than 50,000 people gathered in the valley from all over India to pledge to fight destructive development. A year later (1990) thousands of villagers walked and boated to a small town in Madhya Pradesh to reiterate their pledge to drown rather than agree to move from their homes. Under intense pressure, the World Bank was forced to create an independent review committee, the Morse Commission, which published the Morse Report (a.k.a. Independent Review) in 1992. The report endorsed all the main concerns raised by the Andolan [NBA] 8 When the Independent Review was being written and also after it got published confrontations between villagers and authorities continued in the valley. After continued protests by the NBA the government charged yet another committee, the Five Member Group (FMG), to review the SSP. The FMGs report endorsed the Morse Reports concerns but it made no difference. Following a writ petition by the NBA in 1994 calling for a comprehensive review of the project, the Supreme Court of India stopped construction of the Sardar Sarovar dam in 1995. Tension in the area dissipated but soon the NBAs attention shifted to two other Big Dams in Madhya Pradesh the Narmada Sagar and the Maheshwar. The governments resettlement program for the displaced natives continues to be one of callousness and broken promises 9.

8 9

Id. Armin Rosencranz & Kathleen D. Yurchak, Progress on the Environmental Front: The Regulation of Industry and Development in India, 19 Hastings Intl & Comp. L. Rev.489, 512 (1996)

In 1999, however, the Supreme Court allowed for the dams height to be raised to 88 meters (from 80 meters when building was halted in 1995). In October 2000, the Supreme Court issued a judgment to allow immediate construction of the Sardar Sarovar Dam to 90 meters. In addition, it allowed for the dam to be built up to its originally planned height of 138 meters. These decrees have come from the Court despite major unresolved issues on resettlement, the environment, and the projects costs and benefits While the Independent Review was being written and also after it was published confrontations between villagers and authorities had continued in the valley. After continued protests by the NBA the government charged yet another committee, the Five Member Group (FMG), to review the SSP. The FMGs report endorsed the Morse Reports concerns but it made no difference. Following a writ petition by the NBA10in 1994 to the Supreme Court, questioning the whole basis of the Sardar Sarovar Dam and seeking a stay on the construction. And also calling for a comprehensive review of the project, the Supreme Court of India stopped construction of the Sardar Sarovar dam in 1995. Tension in the area dissipated but soon the NBAs attention shifted to two other Big Dams in Madhya Pradesh the Narmada Sagar and the Maheshwar. Though these dams were nowhere near their projected heights their impacts on the environment and the people of the valley were already apparent. The governments resettlement program for the displaced natives continues to be one of callousness and broken promises. In early 1995, on the grounds that the rehabilitation of displaced people had not been adequate, the Supreme Court ordered work on the dam to be suspended until further notice. The case pending in the Supreme Court led to a palpable easing of repression in the valley. Construction work had stopped on the dam, but the rehabilitation charade continued. Forests (slated for submergence) continued to be cut and carted away in trucks, forcing people who depended on them for a livelihood to move out. In 1999, however, the Supreme Court allowed for the dams height to be raised to 88 meters (from 80 meters when building was halted in 1995). In October 2000, the Supreme Court issued a judgment to allow immediate construction of the Sardar Sarovar Dam to 90 meters. In addition, it allowed for the dam to be built up to its originally planned height of 138 meters. These decrees have come from the Court despite major unresolved issues on resettlement, the

10

http//:http://www.narmada.org/gcg/gcg.html

environment, the project costs and the benefits out of the same is to be considered which was missed out in the judgment. The government of India supports the building of over 3,000 dams on the Narmada River. What the State fails to take into account are the infinite costs of what it terms National Development; the millions of lives affected by the devastating environmental impacts of building dams. The Narmada Bachao Andolan has been pressurizing the World Bank to withdraw its loan from the project through media. The World Bank had originally supported the Sardar Sarovar with a $450 million loan. However, after appointing an independent panel to review the impacts of the project the Bank withdrew support. The panel expressed much concern that the environmental and social impacts of the project had not been properly considered. The strong protests throughout the country not only made impact on the local people but has also influenced the several famous celebrities like film star Aamir Khan, who has made open efforts to support Narmada Bachao Andolan. He said he only wants that those who have been rendered homeless should be given a roof. Narmada Bachao Andolan has increasingly become one of the largest non-violent groups in the world. This is also popularly known as voice of the hundreds of thousands of people who are losing their land and livelihoods to large dams on the Narmada River. This Andolan includes mainly the issues of ecological imbalances and the issues of rehabilitation and resettlement of displaced people apart from other issues. Narmada Bachao Andolan since its formation has conducted various ambitious campaigns, as a consequence of that they have faced far more intense opposition and severe repression in comparison with the earlier civic initiatives. It must also be remembered that their objective which in the starting was merely to get a fair resettlement package for those who were being displaced has also undergone a change and now they started even opposing the whole plan. Learned Senior Advocate Prashant Bhushan on behalf of the Narmada Bachao Andolan filed the petition in 1994. In its petition it raised questions regarding rehabilitation and environment, which formed essential requisites of the right to life, which is guaranteed by article 21 of the Constitution. The Court is one of the most formidable opponents of the NBA. It has exercised its power over the people through judgments to continue with building of dams along the river, disregarding concerns about the dams environmental and social impacts.

Also under Challenge were Article 12 and Article 262. It urged before the court that the dam construction should not go on because the relief and rehabilitation of the oustees as per the Tribunals Award had not been made. The court first dealt with the scope of the NBA petition and then decided to restrict it to relief and rehabilitation issue only. The NBA approached the Supreme Court of India in May 1994 out of a sense of urgency and following significant internal discussion. The decision of Sardar Sarovar Narmada Nigam Ltd (SSNL, the corporation responsible for the Sardar Sarovar dam) to close the sluice gates of the dam meant water was rising in the valley. 11 In 1999, however, the Supreme Court allowed for the dams height to be raised to 88 meters (from 80 meters when building was halted in 1995). In October 2000, the Supreme Court issued a judgment to allow immediate construction of the Sardar Sarovar Dam to 90 meters. In addition, it allowed for the dam to be built up to its originally planned height of 138 meters. These decrees have come from the Court despite major unresolved issues on resettlement, the environment, the project costs and the benefits out of the same is to be considered which was missed out in the judgment.

11

Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, 18 LEIDEN J. INTL L. 345, 355 (2005).

Conclusion It is at this juncture that the Authors would like to conclude the arguments of the above mentioned Cases by contending forth that the attitude of the Indian Judiciary has been towards the Protection of the environment and the preservation of the various life forms, Flora and Fauna. It is high time we realize that Industrial Development on a higher footing than the Environment and the utter disregard of other life forms on the planet cannot be tolerated and will result into non sustainability of any life on the planet. It is with regards this exponential view that the Authors would like to highlight the importance, relevance and credibility of Sustainable Development. In layman terms, Sustainable Development is development taking place without harming the environment so as not to compromise the needs and resources of the future generations. International organizations across the globe have now realized the importance of Sustainable Development and are now working to achieve the same. It can also be defined as Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. 12 This definition is considered to be an International Authority and has Universal Application. To preserve resources for the future generations is a responsibility and liability of the present generation. The unscrupulous use and misuse of resources will lead to the depletion of these resources in the future. The Indian Judiciary has also taken a stand for Sustainable Development and has held it to be an essential feature of Development in the Indian Context and otherwise. The principle behind Sustainable Development is striking a balance between Industrial Development and Ecological Preservation. In Vellore Citizen Welfare Forum v Union of India 13, the Supreme Court for the first time applied the Doctrine of Sustainable Development and stated that We have no hesitation in holding that the Precautionary Principle and Polluter Pays Principle are part of the Environmental Law in India. The Court also held that the Remediation of the damaged environment is part of the process of Sustainable Development and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. Also, in Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh14, it was held by the SC that there is a price to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of Ecological balance and without avoidable hazard to the people, their cattle, homes and agricultural lands and undue affection of Air, Water and Environment.
12

World Commission on Environment and Developments (The Brundtland Commission) Report Our Common Future (Oxford: Oxford University Press, 1987) 13 AIR 1996 SC 2715 14 AIR 1989 SC 594

Thus, it is high time that we realize that we have a responsibility not only towards the future generations but also towards the Environment in the absolute sense.

We owe it to ourselves and to the next generation to conserve the environment so that we bequeath our children a sustainable world that benefits all -Wangari Maathai (Kenyan Environmental and Political Activist and the Founder of the Green Belt Movement; Winner of the Nobel Peace Prize in 2004)

By:- Kalyani Pandya, 2nd Year, B.A LL.B (Hons.) GNLU), Ishani Dave, 3rd Year, B.A LL.B (Hons.) GNLU)