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REHABILITATING THE DISPLACED:

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AN IMPAIRED LEGAL VISION

REHABILITATING THE DISPLACED:

AN IMPAIRED LEGAL VISION *

- Dr. M.K.Ramesh

This is an attempt in critical evaluation of the policy perceptions, legal prescriptions, implementational processes and judicial interpretations concerning the rehabilitation of the displaced under the Indian legal system. While substantiating the main threads of thought of this volume that “compensation formula”, is incapable of restoring and rehabilitating the victim of development, it is the submission here that the legal regime does not even ‘compensate’ the oustee, especially of the indigenous variety. The Indian legal regime, forms the focus of discussion here for a variety of reasons. Besides being an economy in transition and a representative of the developing world, the Indian situation emerges out of a crucible in which there is a constant churning of the human right claims, environmental concerns and demands of development. It presents a kaleidoscopic image, a disconcerting one at that, of a nation that is at an intersection where apparently conflicting interests constantly interact. Examination of the Indian legal system also provides ample scope for highlighting yet another limitation in the current discourse on the subject. It is the indifference of the legal ordering in recognizing the rights and entitlements of indigenous communities, in relation to resources. While the lives of indigenous groups, the world over, are rooted in subsistence economy, community living, sharing and caring, the legal ordering, arguably, influenced by the mainstream economic perceptions, functions oblivious to their interests and existence. Its focus is thus, essentially on set notions of “eminent domain”, “individual ownership” and the like and weaves a regime that excludes a large majority of these groups from even “compensation”. The problem gets exacerbated by the fact that most of the developmental activities take place in areas where tribals and indigenous groups exist and subject them to bear the brunt of adverse impact of development, while the rest of the national community remain the recipients of the benefits enjoying the privilege of all legal insulation of protection. The lack of legal attention, support, strength and succour to the under privileged makes the entire Resettlement and Rehabilitation (R&R) process, all the more deficient and despicable. This is, as asserted by Michael Cernia, “ an essential flaw in compensation systems which are not regulated by law”¹. The Indian legal system presents an opportunity for a detailed examination of this short-coming.

The Setting:

“We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness, and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and that progress was civilization. If we even ventured to ask, ‘progress towards what and progress for whom’, it was considered to be peculiarly and ridiculously oriental to entertain such doubts about the absoluteness of progress. Of late, a voice has come to us bidding us to take count not only of scientific perfection of the chariot but of the depth of the ditches lying across its path”.

- Rabindranath Tagore²

An examination of development-related laws and their working in India, which are, by and large land-based, reveals the model and pattern of unplanned and adhoc processes of development - a process that began long before India became independent and a path pursued with greater enthusiasm, since independence. The last couple of decades, in the independent life of India, voices of review, critique and protest as to the state of affairs concerning Development is getting louder and clearer, insisting on all the concerned to take note of “not only the scientific perfection of the chariot (of development) but of the depth of the ditches lying across its path”, as the Bard stated. True, there were murmurs of protest and dissent as to developmental decisions of State, earlier also, even long before India became independent. Even at very high levels of decision-making, under British dispensation, pain and unhappiness at the way development - decisions were made, within the framework of the law, got expressed. There is this classical quote of Lord William Bentinck, way back in 1834, that encapsulated the suffering and trauma of victims of development, who moved from one work place to another as law paid wage earners in building bridges, constructing roads and dams: “the misery hardly finds a parallel in the history of commerce, the bones of cotton weavers were bleaching the plains of India”.³

A deeper analysis and critical evaluation of development-related laws is called for, as one finds the dark underbelly of development staring at and adversely impacting on tribal existence, more than anyone else, in India. A few statistical details should drive home this point⁴:

(i) Displacement induced by developmental projects, between 1950 - 1991, has been estimated to the tune of 213,00000 of people; (ii) over 50% of the displaced ones belong to the tribal communities; (iii) around 75% of the displaced ones have not been rehabilitated, even long after completion of the projects-oriented towards development; (iv) among the rehabilitated victims of development hardly 15% constitute the tribal population and (v) the tribals constitute about 8% of Indian population.

The analysis is closely related to an analysis of the extent of interest in and control over land as facilitated in the legal ordering, especially in relation to the tribals, who are the worst affected and the first to get displaced from their lands, as the statistics reveal. This constitutes the second dimension of enquiry.

The third aspect of the enquiry is related to the extent of participation and involvement of tribals, permitted under the laws and administrative processes, in deciding about the nature of development, sharing in the benefits derivable in the entire existence.

Policy and law in relation to Land Acquisition; Resettlement and Rehabilitation and Environmental Protection are the ones that are directly related to the set of enquiries attempted in this segment. The analysis is also important for the reason that, these legal instruments, generally, override all other laws and administrative processes concerning Land, Development and Environment.

The Land Acquisition Act, 1894⁵

· Objects of Acquisition

The legislation that has celebrated a century of its existence in 1994, was initially brought into force for the purpose of facilitating acquisition of land by the government for “public purpose”. “Public purpose” meant any developmental activity to implement any scheme or policy of the government, including making provision of land for any government sponsored educational, housing, health or slum clearance scheme.⁶ A major amendment to the law expanded the scope of the Act to include acquisition for a “company” as well.⁷ This is a very interesting development. The law enacted during the colonial period, had limited objectives for acquisition that passed off as for “public purpose”. The British required the legal endorsement for all the efforts of acquisition that satisfied the imperial designs of a non-democratic government.⁸Monetary compensation, for what was acquired for `public purpose’, as prescribed in the law, was to avoid the private landholder from getting worse off in economic terms after loss of land. The British acquired land for the railways, expansion of trade routes; conversion of forests and pasture lands into plantations of coffee, tea, rubber, etc., establishment of army cantonments and Ordinance Factories, construction of Dams and Canals and the like. In most cases, the people from whom the land was acquired were, either agriculturists or forest-dwelling communities. The greater `common good’ in preference to the interest of an individual or for that matter, of a community, including the tribals, formed the perfect, legal and moral justification of acquisition by the State. The “public purpose” served the British as a moral justification to theorise and legitimise their control over land. By inserting of the requirement of acquisition for “a company” in 1984, the independent Indian government added the dimension of justification of acquisition of land by it to serve the needs of a company - a private purpose. What was at least a moral foundation, under the British rule disappeared, with this amendment to the law. So, in terms of objects, other than for public purpose, the state can now don the role of a retailer, a broker or a real estate agent, to acquire land and make the same available for a company, including a private one.⁹ By the same logic, since tribal interest does neither figure in as serving “public purpose” or that of a “company”, land cannot be acquired by the state for solely meeting their demands. However, land could be taken away them to serve those purposes!

Process of Acquisition:

The acquisitorial process is in several stages. In stage one, there is an issuance of notification of an intention to acquire, that would be followed by certain activities a public functionaries may perform in relation to the land;¹⁰ stage two involves hearing of objections, Collector’s report with recommendations¹¹; stage three concerns issuance of order of acquisition by Government¹² ; stage four refers to the steps to be taken for completion of the process of acquisition and award of compensation.¹³ Land can also be acquired, by the State, for an emergency or urgency, at very short notice (48 hours and 15 days, respectively). No right to raise objections exists in such a case, as there would be little time available for the purpose.¹⁴

The procedure prescribed, smacks of imperial arrogance, at least in practical terms. Notice of intention to acquire, hearing of objections and submission of Collector’s report, are such procedures that are carried out in a routine way. On paper, these appear to be the processes of consultation and consensus building; exercises that are expected to contribute to the final form of the developmental decision. One of the prerequisites for raising objections or, even for that matter, to get involved in consultations, is the need for an element of transparency in the entire process. This requires, openness in the dealings, free and frank disclosure of information as to all the factors taken into consideration leading to the issuance of notifications. Nature of the developmental activity, extent of actual need and how would the activity serve any public purpose, etc., are some of the information, the local people should know. No such effort, gets into the process of acquisition. With the result hearing of objections becomes no more than a routine affair, neither illuminating nor contributing, in any significant way, to the final decision, as to acquisition. But, as a matter of fact, these procedures ring so hollow that alteration of ultimate decisions as to acquisition and development from the original position, appear few and far between.

Relief for acquisition:

Elaborate set of provisions exist for payment of compensation, for the land acquired by the State. The compensation is calculated on the market price of land. Even damage caused to the property during the process of acquisition are taken into account in calculating the amount of compensation.¹⁵

The compensation paid is for actual acquisition. Loss of land is not interpreted to include damage to it by air, soil, water pollution or loss of access and the like. More particularly (-and this is more appropriately applicable to land dependent communities including the tribals) the loss is not calculated with regard to a number of deprivations experienced in the process of acquisition. These include loss of work and wages on other people’s land; loss of land related work life, making ploughs, carts, etc., and the loss of work of artisans who serve people living on the land, like tailors, cobblers and shopkeepers.¹⁶

Restoration of acquired land or land for land :

The law does not provide for relief other than in monetary form Only in case of acquisition for an emergency or for a temporary purpose, scope exists for restoration of land, upon expiration of the term of temporary acquisition.¹⁷ Such a restoration is not contemplated in all other situations as the acquisition is supposed to be for a permanent purpose and one’s loss of land, is for ever.

There is also no requirement for the state to restore the land acquired or to start the process of acquisition all over again, when the purposes for which acquisition is made has either ceased to exist or when there was change of purpose. In the Banwasi Seva Ashram¹⁸ case, the State Government initially thought of creating a Reserve Forest, for which purpose it started evicting residents of several villages. A writ petition was filed, protesting against non-observance of procedures established by law and for non-accommodation of interests of the local communities (that included tribals, as well) in the process. The Supreme Court ordered for appointment of a committee to look into the claims of the locals. On finding that the committee so established was biased, another order was issued to substitute the committee with another one. In the meantime, there was a change in the thinking. The Government now wanted to set up a Thermal Power Plant (Rihand Super Thermal Plant), instead of creating a Reserve Forest, as proposed by National Thermal Power Corporation. While noting the importance of the forests as a national asset, the court agreed with the proposal of the Government to embark upon a scheme to generate electricity as equally of national importance and to be taken up on a priority. There was neither questioning the bases upon which the first proposal was made and process of acquisition set in motion in pursuance of that purpose or the reasons for change in the plans. The court was more exercised over the adoption of proper processes of payment of compensation or rehabilitation of the displaced. It came up with a detailed set of directions in that regard. Neither restoration of land acquired, which was no longer required for the purpose for which it was meant, nor the need to hear objections and formulate recommendations on the new proposal was found necessary in the contemplation of the court of law, in such cases.

This, in a way, reduces the so-called process of consultation and consensus - building, as nothing short of a farce. This also resurrects the age old, colonial, notion of Eminent Domain. It is the notion that the state, as the sovereign, has its authority and domain, over all the resources over its territory and that the Land Acquisition Law is one such tool that facilitates the state to exercise its authority. In New Reviera Coop. Housing Society v. Special Land Acquisition Officer,¹⁹ the Supreme Court asserted that the State had the right and authority in exercising its eminent domain, in public interest, and acquire land, without any binding obligation of offering alternative sites for the displaced persons. It stated that, “... Right to shelter is undoubtedly a fundamental right”. A person may be rendered shelterless, but it may be to serve the larger public purpose²⁰.Apartfrom acknowledging the fact of deprivationfor a public purpose, the court did not deem it necessary to circumscribe the state’s power of eminent domain. The judicial logic runs somewhat like this: The fundamental right to shelter is not an absolute right. If it were to be viewed in absolute terms then, no land can be acquired under any law for any public purpose, since in all such cases the owner or the interested person would be deprived of his property. The Land Acquisition Act imposes a reasonable restriction. Since the owner is unwilling to part with his property for public purpose, Section 23(2) provides solatium for compulsory acquisition against his wishes. Under those circumstances, it cannot be held that the acquisition for public purpose violates Article 21 of the Constitution or the right to livelihood or right to shelter or dignity of person. This idea gets explicit in the following words of the court, “In a case where the State comes forward with proposal to provide alternative sites, certainly the court gives effect to that proposal and appropriate directions in that behalf were issued by this Court. But that principle cannot be extended as a condition in every case of acquisition of the land that the owner of the land must be given alternative site or flat...... If that principle is extended, in no circumstances the State could acquire any land for public purpose. Thus considered, we are of the view that there is no substance in the contention raised by the counsel for the appellant that the acquisition of land violates his right to life offending Article 21 of the Constitution”.²¹

There are only two places where the Act refers to making provision for grant of land to a displaced person. The definition of “public purpose”, includes making provision “of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by government, any local authority or a corporation owned or controlled by the State”.²² The other provision in which arrangements of alternative land for the displaced person comes within the contemplation of the State, is the one relating to the exercise of discretionary power by the Collector in paying compensation to the oustee. The provision reads thus, “Notwithstanding anything in this section, the Collector may, with the sanction of the appropriate government, instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land-revenues on other lands held under the same title, or in such other way as may be equitable having regard to the interests of the parties concerned”.²³ Lest one would mistake or take advantage of this provision to tie the hands of the Collector to enter into such an arrangement of land for land, the drafters of the law have exercised abundant caution by including the following clause, “Nothing in the foregoing Sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof”.²⁴

The Land Acquisition Act, in essence, does not obligate the State to resettle, rehabilitate or even require it to provide alternative land for the one affected by the process of acquisition. Payment of compensation alone, for the loss, is mandated. Even the compensation is not payable to all the people affected by the operation of the Act. When one realizes that the worst victims of acquisition are the tribal communities, the design and the content of the law have enough scope and ammunition to annihilate these victims of development. Since the scheme evolved under this law ill-suited to take care of tribal interests, is incorporated in all the laws that deal with land acquisition and land development, especially the Forest and Wildlife laws, the very right over resources for the tribal people, suffers a serious dent. The Land Record System, Registration of Titles, as prevailing do not, in any way, support the tribal notions of land rights. As such, the system of governance concerning land - both law and practice - are heavily loaded against tribal interest. Ironically, the application of these laws, are predominantly in tribal areas and they do not have provisions to support the claims, interests and entitlements of the tribals.

Resettlement and Rehabilitation ( R&R) : Policy and Law

No R & R Policy and Law:

In a seamless continuation of the land-related laws that deal with Land Acquisition is the law as to Resettlement and Rehabilitation. While there exists a national law for Land Acquisition, there is no law to resettle and rehabilitate the displaced one, at the national level. For that matter, there does not even exist a national policy. Legal concern for the displaced people has had a late start in India. There are only a few draft policy documents and tentative attempts in law-making at the national level. Only a few States have passed legislations on the subject, and the implementation by them of what is enacted by them is not uniform. The most perplexing thing that about the state of affairs is that the tribals in India are disproportionately affected by developmental displacement. With lack of or indifferent support for their plight from the legal ordering, the tribals are on the brink of annihilation at the threshold of the new millennium. The apathy of law and administration, to the disadvantaged position of the tribals, exposes the hypocrisy of an unsympathetic system of governance. It is, perhaps, the saddest chapter in the annals of the fifty odd years of independent existence of a democratic republic. The relentless struggle of the Narmada Bachao Andolan,²⁵ lobbying by a number of voluntary organizations²⁶ and pressure from international lending institutions,²⁷ have made the Government re-work its priorities and endeavour to accommodate the interests of the victims of development, in the very process of development. There are distinct trends and the turning of tide, with a few draft policies and draft legislative bills in circulation. It would be worthwhile to discuss these and the efforts at the State level to understand the current state of affairs as to Development, Displacement and Resettlement. Through this effort, the conceptualization of the status of the tribals in the Indian legal milieu, it is hoped, would be possible, in a realistic way.

Towards a National Policy on R & R :

The following is a chronicle of the efforts in independent India, that have attempted to come out of the compensatory paradigm so as to create better and more humane environment for rehabilitating those adversely affected by developmental decisions. Although, they have not, as yet, crystallized into legislative law at the national level, the recounting of developments indicate the trend and the direction towards which the national thinking is moving in this regard.

In 1967, a formula was evolved (called “T.N. Singh Formula”), that suggested making a provision of a job per family displaced by public sector industries and mines.²⁸ But, it was abandoned by the Bureau of Public Enterprises in 1986, as there was a considerable reduction in unskilled jobs owing to mechanization of industrial production processes.²⁹

In 1985, in a report, the Home Ministry, expressed its concern over deprivation and destitution resulting from displacement of the tribal communities. It also found the existing system of payment of monetary compensation as an inadequate relief for the loss of land. This was more so in case of tribals, who do not have the ability required for converting cash into some kind of a long term investment as to be a source of sustenance to them. It suggested that a national policy be evolved, that would cover all the Displaced Persons, making rehabilitation an integral part of projects, whether executed by the public, private or joint sector.³⁰

Between 1993 and 1994, a number of draft policy documents emerged from various Governmental Agencies and also from the government itself. The National Thermal Power Corporation (NTPC) was the first one to come up with a draft in 1993 and this was followed by a draft by Coal India Limited towards the end of 1994. The Department of Water Resources Development also followed suit and its third draft policy document (1994) is currently in circulation.³¹ Amidst this flurry of activity the Ministry of Rural Development got busy in preparing drafts of Land Acquisition Law and Rehabilitation Law for the country. The Union Cabinet, approved the Land Acquisition (Amendment) Bill, 1998, on 31^st October, 1998. It however, rejected the Draft National Rehabilitation Policy for Resettlement and Rehabilitation of Displaced Persons, 1998.³²

All the Draft policy documents refer to the heightened awareness among all the concerned about the unmitigated suffering of the project affected people; the Constitutional right of people to move and reside in any part of India and various international human rights and other instruments requiring such a comprehensive policy to reduce and avoid impoverishments risks of the displaced ones. Although, these and other provocations existed a long time before the drafting exercise began in the Ministry and the public sector bodies, one reason, that must have influenced the government to evolve a policy of R & R, is that of the withdrawal of the World Bank from funding the Sardar Sarovar project across the river Narmada. Not only does this find mention in the national document, there is even an expression of an apprehension of financial institutions withholding loans, if the government did not act on this.³³ The policy document appears to suffer from certain inherent contradictions. While it provides for a three year transitional period from original habitat to new settlement site to the oustees, it requires the land to be made available at a shorter frame of time for developmental activities. The enthusiasm and the concern shown for the execution of a developmental activity, after acquisition, does not appear to be there in resettling the oustees. No mechanism is evolved in overseeing proper resettlement. The oustees do not constitute a homogenous group. As such, the dominant groups among them would have ample opportunities to corner whatever benefits the resettlement package could offer, in the absence of any agency monitoring transition. The tribal communities, as the most vulnerable groups among the oustees may end up worser off than they were before displacement. No plan or programme is envisaged to help the displaced ones to re-build their lives, in terms of preparing them to self-employment and self-sustaining avocations³⁴.

The definition of ‘Project-Affected persons’ (PAP) also leaves a lot to be desired. In order to be a claimant for getting the benefits of resettlement, it is the same evidence or proofs, as is required under the Land Acquisition Act, 1894, that is expected under this policy as well. Record and Registry based title and the like, would alone determine one’s status as a PAP. Here also, the tribal loses out as he is not familiar to these mechanisms and machinations of establishment of ones claims.

The Draft Policy document refers to `land for land’ formula, by which several options are available in resettling the oustees. Award of cash grants to enable the oustee to purchase land in the open market or by creation of a land proof from available government land or private agricultural land likely to be sold, at a price to be determined by the government (this was the method adopted in the case of Sardar Sarovar project in Gujarat) appear to be the methods adopted. These have produced, less than favourable consequences for the oustees as the land got by them were either of poorer quality or the purchases made were at an upset value.

What the Draft policy contemplates is no more than relocation and not resettlement or rehabilitation. Resettlement and Rehabilitation require an ambiance that is similar to the environment and socio-economic conditions not appreciably different from the one, from where the oustees had been displaced. With the ‘land for land’ as proposed in the Draft, R & R in its true spirit is not possible to achieve. For instance, “The oustees, by and large being tribal, have to deal with the agricultural production system of the new site which is technologically much different. The institutional set up for input delivery, specially water, credit and output marketing on the one hand, and institutions responsible for dissemination of production techniques on the other, are geared to deal with a more receptive host community. Access to these institutions may not be automatic for new settlers. More over, asking host farmers to share their resources without augmenting them results in depletion of resources and disruption of social harmony between oustees and host communities”.³⁵ This, disjunction is bound to affect the socio-cultural lives of the communities - oustees and hosts.

Since the policy, as spelt out, is to relocate oustees on an individual basis, communities of people displaced at once will not, as a general rule, be able to get resettled, all in one place. Such a policy proves detrimental to tribal interest as they do not exist as individuals, but as groups and communities. Application of the policy is, indeed, an invitation to cultural annihilation of the tribal existence.

The poor and very unsatisfactory formulation of policies on the part of the government led to a number of voluntary initiatives. Towards the end of year 2000, a number of draft policy documents and legislative drafts were made available. They were submitted to the Government for its consideration. One praiseworthy aspect of these exercises is that their evolution has been the result of a series of consultations among various interest groups and contributions emerging out of consensus built by relentless efforts of social action groups in India.³⁶ One can only hope for formulation of a better national policy document leading to a law that dovetails resettlement and rehabilitation in the process of acquisition as one single continuous developmental process.

Legislative Efforts at State level :

There are only 3 States - Maharashtra, Madhya Pradesh and Karnataka, that have enacted legislations to resettle Project - Affected People (PAP).³⁷ Maharashtra was the first state to have enacted a law on the subject. This was in 1976. Since quite a few of its provisions became contentious, a Commission was appointed to review it. After amending the law in 1986, on the basis of the report submitted by the Commission, it secured Presidential assent in 1989.³⁸ Madhya Pradesh enacted the law on Resettlement in 1985.³⁹ Although, as a general rule, it applies to irrigation projects, discretion exists to apply it for other projects as well. Karnataka followed suit in 1987. But, the legislative effort obtained the Presidential nod only in the year 1994.⁴⁰

Among the three legislations, the Maharashtra effort has a broader definition of the `project-affected person’, than the other two. It recognizes the landless (craftsman, trader, professional and agricultural labourer, who do not own any land), as entitled to rehabilitation benefits.⁴¹The Karnataka law includes the agricultural and non-agricultural labourers in its purview.⁴² The Madhya Pradesh Law includes only the agricultural labourer.⁴³ Both the Maharashtra and Karnataka enactments obligate the State to find avenues of employment for the Displaced Persons either at the project site or elsewhere.⁴⁴ Provision for a detailed census of the displaced persons and assessment of the extent of land from which people are likely to be displaced, is provided only in the Karnataka Act.⁴⁵ The other two states are silent on it. This rule is helpful in proper assessment of the situation and facilitates better and more scientific planning of rehabilitation. While the Maharashtra and Madhya Pradesh law concern mainly the irrigation projects, the Karnataka law leaves it to the discretion of the government to decide on which project should come within its ambit. A separate authority is created under the Karnataka law, while in both Maharashtra and Madhya Pradesh it is project-based arrangement and invariably it will be the revenue authorities handling the resettlement issue.

There appears to be a lack of proper planning in evolving these state legislations, besides absence of far-sightedness. No scope exists either for the project affected people or the local bodies to get involved either in consultation or in the decision-making processes. Claims settlement and conflict resolution are carried out by the authorities appointed for the purpose are appealable with higher authorities, in the same hierarchy. The Appellate authority enjoys the status of High court. Decision on appeal is final and cannot be questioned in any court of law. The law on the point is against the principle of natural justice (as the decision-maker and appellate authority belong to the same line of authority). It is also unjust as the procedures adopted, all through are administrative and quasi-judicial. Need remains for a judicial procedure to be observed at the appellate stage. The entire process of resettlement and its costs are to be taken care of by the government. It does not stand to reason as to why it should be so, especially when the State can acquire land for a purpose other than in public interest. It should be made mandatory that the costs of the entire process should be absorbed in the project costs. One more glaring defect in the body of law evolved at the State level is that any mortgage, debt or other encumbrances on the land held by a displaced person would transfer therefrom and attach itself to the land granted for resettlement. The underlying presumption is that both the beneficiary and the burdened ones in the affected zone, go together to the land made available to them. It does not contemplate a situation of one of them accepting monetary compensation and going away, without bothering about the land-option.⁴⁶Since, instances of multiple displacement, especially of the tribals, is a major issue concerning developmental decisions (and as an aspect of their critique as well), the expectation from these laws was that of finding some provision taking care of the problem. This finds no mention any where.

Viewed from the angle of the tribal, who has hitherto been bearing the brunt of displacement burden, in the name of development, these legal developments are distinctively welcome. These recognize and project the victim perspective. Since the national policy and law are still at the stage of evolution, time is ripe to incorporate the elements of participation, consultation and consensus - building in the entire process of acquisition, displacement and rehabilitation, for development.

Case Law

2 landmark judgments with contrasting consequences, merit attention here, for a variety of reasons. The cases concern the Banwasi Seva Ashram and the Narmada agitation. While in both the cases, the protagonists lost their case of getting the land restored to the tribals at the altar of “greater common good”, “public interest” and “national interest”, the cases stand out for opening the eyes of all the concerned to rethink about the very notion of development, the price to be paid for it, the need for getting redressal for the displaced and to evolve mechanisms - in policy, law and practice - to ameliorate the state of desperation, dejection, denial and impoverishment of the victims of development. The Narmada case, especially, stirred up the very consciousness of the nation, through scientific analysis and backed up by a thorough research, questioning the very process of decision-making, and by exposing the limitations inherent in the system. A brief analysis of the two struggles, that enriched the jurisprudence on the law of acquisition, displacement and rehabilitation, with tribal existence at the centre of the entire discourse, appears perfectly in order here. They also, in a way, expose the limitation of the legal regime, rooted in compensating the one deprived of his land.

The Banwasi Seva Ashram Case,⁴⁷ began as a writ petition in 1982.⁴⁸ It was disposed off by an order of the Supreme Court, requiring the National Thermal Power Corporation to take steps in rehabilitating the oustees of the Rihand Thermal Power Project.⁴⁹ The Supreme Court, having taken upon itself, the responsibility of monitoring the execution of its earlier order, finally disposed it off by issuing a detailed set of directions as to the methods and manner of resettlement of the Project Affected People, in its order of 1992. As many as 13 specific instructions were given to NTPC to rehabilitate the oustees, who were in actual possession of the lands / houses etc., in collaboration with the State Government. The instructions included preparation of a detailed list of the oustees; granting of plots of land for housing; transportation facilities, allowances for shifting their personal effects and house building; subsistence allowance for a period of 10 years; employment opportunities for them in the project; construction of roads and drainage system, water supply, schools, hospitals and other facilities as are required to rehabilitate them. The Deputy Commissioner, was also instructed to supervise and ensure that the rehabilitation measures directed by the apex court were complied with by NTPC and other authorities.⁵⁰

The importance of the Banwasi Seva Ashram case lies in the fact that the decision directly focuses the attention of developers and policy makers to the plight of victims of development and, in this case, to that of tribals and other local communities. In addition, the highest court does not close the case till the various stages of accomplishment of its directions are reported to it. In other words, the Supreme Court devised a mechanism, whereby the fruits of its judgment could get realized by its beneficiaries. More importantly, the series of directions issued, formed the very base upon which the NTPC could evolve its policy on Resettlement and Rehabilitation. The policy so evolved by NTPC was the first of its kind and that triggered off a spate of such efforts by other public sector bodies (Coal India Limited) and by the Government of India itself. Truly, the judgment was a trail blazer, in making the State consider R & R as an integral part of developmental decision.

All the same, it must be asserted here that the highest court missed out an excellent opportunity of clarifying a legal position, when the same was presented before it. This is as to a change in the developmental decision from the earlier object for acquisition to another one. In this case the purpose for which the process of acquisition initiated was for creating a Reserve Forest. This, later, ended up as acquisition for the establishment of a Thermal Power plant by NTPC. All that the court appeared concerned, in such a situation was, whether the purposes for which acquisition made, although at variance with earlier purpose, satisfied the litmus test of “public purpose”. This meant that the government, in the exercise of its power over its “eminent domain”, could change the object of acquisition at any stage and had no obligation of consultation with the affected people, elicit their opinions and objections and accommodate the same before arriving at a final decision. In effect, the specific object and local perceptions do not matter, as long as the land is used for some public purpose. Once a decision to acquire is made, in public interest, then there is no looking back. No obligation for review and reform of the proposal at any stage. It is an unidirectional movement culminating in acquisition of land and putting to use, ostensibly, in public interest.

The Narmada Case :

A monumental struggle, that drew world wide attention, for the sheer tenacity and never-say-die spirit of a mass movement, in support of people affected by the Sardar Sarovar project, had an almost anticlimactical end to its decade-long legal battle, with a majority verdict of the Supreme Court, against it.⁵¹Setback on the legal front, notwithstanding, the movement has had a decisive impact on all major plans and decisions as to development in the country. It is, indeed, worthwhile to analyse the case in detail, not just for the catalytic role of the Narmada Bachao Andolan in it, in having stirred up the consciousness of the nation to the plight of the tribals as victims of unplanned development, but at the same time to get the feel of the entire process and locate the role of different dramatis personae (comprising of political leadership, administrative set up, activist groups, academic and research institutions, judicial bodies and of course development-lending institutions), their perceptions, concerns and contributions towards the tribals and other local communities, who suffer for larger common good. The case is also a lesson in understanding the working of a legal system in the most populous democracy in the world.⁵²

The case related to the Narmada Valley Development Project, a multi-purpose joint venture of four states namely, Gujarat, Maharashtra, Madhya Pradesh and Rajasthan. The largest water resources development project in the country, involved construction of 30 large dams, 135 medium dams and 3000 small dams on river Narmada and its tributaries. Sardar Sarovar and Narmada Sagar (Indira Sagar) are the two gigantic dams in the entire project. All the dams except Sardar Sarovar, are in Madhya Pradesh. The Sardar Sarovar, in Gujarat, with impacts and benefits in all the four States is planned at a height of163 meters and length of 1210 meters. An estimated figure of 40000 families are expected to be displaced, once the project gets completed. A large number of these families are tribals (approximately 22.5% of the total displaced persons). Submergence resulting from the execution of the project, includes self-sustaining tribal villages in the hills, which are independent communities with their own highly developed economic, social, legal and cultural systems. This also includes highly fertile soils, lift irrigation from the river, etc. A large number of people who will be seriously affected by the project, like the colony affected people,⁵³ canal affected people,⁵⁴ drainage affected, downstream affected and sanctuary affected people, do not figure in as project affected people. When fully complete, the project is expected to irrigate 18,75,000 hectares of land. Drinking water would be made available for about 5500 villages. It would also generate 1450 Mega watts of power, provide employment to the extent of 7 lakh man hours during construction every year and provide protection against the advancing Rann of Kutch and Rajasthan deserts. Collateral environmental benefits were expected to accrue, with the supply of water to Dumkhal Sloth Bear Sanctuary, Velavador National park and Great Indian Bustard Sanctuary at Kutch. Contribution to development of fisheries, increase in the recharge capacity of acquifers and increase in agricultural production, were the other benefits claimed to be, derivable from the execution of the project.

All the estimates (both Government and other sources) were only approximates. Neither the exact numbers to be displaced, area of catchment and submergence nor even the extent of benefits derivable from the execution of the project, were available. The project conception and its litigious path has been quite tortuous, tedious and arduous.

The first stage of the project commenced from 1961. A series of inter-state confabulations, establishment of committees and their recommendations (Khosla Committee Report) followed in the next few years time. There was non-implementation of reported recommendation as inter-state dispute arose over, use, distribution and control of waters of the river. A Tribunal headed by Justice V. Ramaswamy was constituted by the Central Government in 1968, to decide on the Inter-State Water dispute. Rajasthan too joined the fray of dispute in 1969. The next few years were devoted to legal wrangles resulting from unilateral actions, Court stay orders and compromises. The final Award by the Tribunal was given in 1979, after a comprehensive and thorough examination of issues concerning water allocations, height of dam, hydrology and other related issues. Two major aspects of the Award were concerned with the determination of the height of the Sardar Sarovar dam (at 455 ft)and relief and rehabilitation for the displaced persons. The Gujarat Government was required to pay to Madhya Pradesh and Maharashtra all the costs including compensation and other expenses incurred by them for the purpose of acquisition. Primary responsibility of resettling the oustees remained with Gujarat, either in that state or in the state from where they were being displaced. The most significant aspect of the award was that there could be no submergence of any area unless the oustee was, as a pre-condition, already rehabilitated. Directions were issued for the constitution of the Inter-State Administrative Authority (Narmada Control Authority), to secure compliance with and implementation of the decision and directions of the Tribunal. A Review Committee for the entire project and a few other committees were also directed to be constituted to ensure efficient, economical and early execution of the project.

The next nine to ten years were taken in preparing estimates, action plans, getting environmental clearances, in approaching World Bank and securing loan from it. An initial estimated cost of Rs. 6406 crores was cleared by the Planning Commission in 1988. The Sardar Sarovar Dam Construction work had already begun, a year earlier. Quite a few smaller dams were already constructed and the canal construction work was reportedly, in progress. This was also the period when the mass movement - Narmada Bachao Andolan (save Narmada Movement) - against the project, was taking its roots. With a very scientific analysis of the claims and estimates and supported by extensive field studies, it began questioning the process and decision as to development of the region through the project. In 1991, a letter from B.D. Sharma (who was then the Commissioner of Scheduled Castes and Scheduled Tribes, Government of India) requesting, besides consideration of various other issues, for proper rehabilitation of the oustees of Sardar Sarovar project, was converted into a writ petition by the Supreme Court and directions issued by it to the concerned governments to constitute a Committee to monitor the rehabilitation aspect of the project.⁵⁵

An independent Review Mission was instituted by the World Bank, under the chairmanship of Bradford Morse, to review and evaluate the claims, statistics and the processes involved in the execution of the project. The Report submitted in 1992, indicted the entire process of decision-making and execution of the project. A passage from the Report reads thus, “We think that the Sardar Sarovar projects as they stand are flawed, that resettlement and rehabilitation of all those displaced by the projects is not possible under the prevailing circumstances, and that the environmental impacts of the projects have not been properly considered or adequately addressed.

“The history of environmental aspects of Sardar Sarovar is a history of non-compliance. There is no comprehensive impact statement. The nature and magnitude of environmental problems and solutions remain elusive”.⁵⁶ Based on the report, the World Bank suspended all aid to the project. It refused to make any further commitments till such time the doubts raised in the report were clarified.

Withdrawal of the World Bank; mounting pressure from Social Action Groups ; delays in implementation of all that was promised through affidavits before Courts of law and to speed up the entire process, as apparent basic provocations, the Government of India constituted a Five Member Group to discuss all the aspects of the project with the Narmada Bachao Andolan and submit its report to the Government in 3 months time, in 1993. The Committee’s working, despite having very eminent personalities,⁵⁷ ran into rough weather, with a stay order issued by Gujarat High Court for the publication of the Report. The Supreme Court intervened, at the behest of Narmada Bachao Andolan (NBA), and ordered for the publication of report. There was more to come. Discussion and dissent among State Governments; further issuance of direction to the Committee by the Supreme Court to submit a more detailed report; discontinuation of the chairperson from the Committee on health grounds and the submission of a final report by the truncated committee having no consensus on the contents, in 1995, ensued. The Committee was, by and large, in agreement as to the execution of the project in a phased-manner, with each phase requiring advance completion of R & R before proceeding to the next phase. There was also an element of helplessness expressed in the Report that it was a fait accompli, what with huge investments already made in the execution of the project and calling off its implementation at that stage as ill-advised.⁵⁸

The height of the Sardar Sarovar dam was a major bone of contention. Even the Madhya Pradesh Government, before the tribunal, had contended that the height of the dam was to be settled for a lower level than the pre-determined height of 455 feet, as such a change would reduce the incidence of submergence of vast tracts of land in Madhya Pradesh and would avoid large scale displacement of tribal communities. It was also submitted that Madhya Pradesh did not have sufficient lands to resettle the displaced. Rejecting the request for reduction of the height of the dam, the Tribunal required Gujarat to take measures for resettling the project affected people. The Government of Gujarat, as required in the Award of the Tribunal, offered to settle all the displaced on its own soil. One of the things lost sight of in the entire process, was the impact such a resettlement measure would have on the lives of the displaced tribal communities. All the tribals displaced under the project, had come under the Tribal sub-plan scheme, which contemplated many a developmental activity for their welfare. Further, there were tribal families that resided in Scheduled Areas before getting displaced. On resettlement in Gujarat, these very groups would lose their status of Scheduled Tribes and the consequent benefits, as well.⁵⁹ The issue of the need for reduction of the height of the Dam was also taken up in the argument submitted to the Supreme Court, on behalf of NBA. The Apex Court also rejected the argument, on the basis of consideration of the issue and its rejection by the Tribunal. It also relied on its own earlier ruling in the case of The State of Karnataka v. State of Andhra Pradesh and others,⁶⁰ in which it was held that once an issue is decided by the Inter-State Tribunal in law, it would be binding on the respective States. It also observed that it was not open to third party like the petitioner to challenge the correctness of such an Award.

It was also submitted, on behalf of NBA, that the large scale displacement of tribal communities, was in clear violation of their fundamental right to life under Art. 21 of the Constitution and also not in consonance with India’s International obligations under Art. 12 of the ILO Convention 107. The stipulation under the international obligation, required that the tribal population should not be removed, without their free consent, from their natural territories, except in accordance with national laws and regulations or in the interest of national economic development. It further required that, if in exceptional circumstance they are to be removed thus, then they ought to be provided with land of quality at least equal to that they had earlier occupied, to meet their present needs and future development. The court, while agreeing with the petitioner of the need to conform to international obligations and the same could be read into domestic law, rejected the argument that the execution of the project would violate those commitments. The court based this observation, on the submission made by the State Governments and held that the rehabilitation package contained in the Award and as improved further by the State of Gujarat and other States showed that the land required to be allotted to the tribals was likely to be equal, if not better, than what they had earlier. It further held, “The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that their rehabilitation at new locations they are better off than that they were. At the rehabilitation sites they will have more and better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the mainstream of the society will lead to betterment and progress”.⁶¹

A ring of inevitability of displacement of tribals, for “greater common good” runs through the majority opinion. Comments over a track record of poor implementation of its own directions and arguments over issues of environmental degradation do not get the attention, they deserved. Instead, there appears to be greater reliance on the submissions made and periodic assurances given by various governments and the Central Ministries. The emphasis of the court was essentially on proper rehabilitation measures getting implemented without delay. This is reflected in this passage in the majority opinion: “Displacement of people living on the proposed sites and the areas to be submerged is an important issue. Most of the hydrology projects are located in remote and inaccessible areas, where local population is, like in the present case, either illiterate or having marginal means of employment and the per capita income of the families is low. 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 larger good. A nature river is not only meant for the people close by it but it should be for the benefit of those who can make use of it, being away from it, or near by. Realizing the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for takeover for dam or any other developmental activity, the project implementing authorities have to implement R & R programmes. The R & R plans are required to be specifically drafted and implemented to mitigate problems whatsoever relating to all, whether rich or poor, land owner or encroacher, farmer or tenant, employee or employer, tribal or non-tribal. A properly drafted R & R plan would improve living standards of displaced persons after displacement”.⁶² A number of illustrations get cited by the court in support of its observation that in each of those instances (like, Bhilai and Bokaro Steel Plants), the quality of life of the people improved. Rejecting the contention against large dams, several illustrative examples were given by the court to establish that each one of those instances, the quality of lives of the people enhanced, the environmental quality improved and that there was national development in the process. The majority concluded with its observations that the project ought to be completed at the earliest and the relief and rehabilitation work, both in letter and spirit, to be carried out without any delay and within a time-frame.

The Dissenting opinion of Justice Bharucha is significant here, as the judge deals with the same issues, the facts as presented and draws a diametrically opposite conclusion. The major points of dissent include, a thorough review of the entire process of decision-making, cessation of all project-related activities till a proper scientific impact study is made available and all rehabilitation work completed as per the agreed plan. The opinion of dissent goes to the extent of holding that in event of the project not getting completed, “all oustees who have been rehabilitated must have the option to continue to reside where they have been rehabilitated or to return to where they were ousted from, provided such place remains habitable, and they must not be made at all liable in monetary or other terms on this account”.⁶³

In these words of dissent, perhaps, lies the future thinking on mega projects. It may not be too far fetched to assume that the dissenting opinion may open new vistas of thinking about developmental decisions. On the basis of the dissenting opinion given in the Narmada Bachao Andolan case the following futuristic perspectives are proposed: That there is a need and duty to review developmental decisions, no matter at what stage of accomplishment they are in; that the helplessness of calling anything as fait accompli would no longer hold any substance and that the State is obliged to rework and redesign its plans of action, should there be a change in a specific public purpose even after the process of acquisition is complete and a developmental activity is set in motion.

There is another dimension to this. It is the dimension of contempt of court. If one traces the progression of the case in the Supreme Court, right from 1994 to its final destination in the year 2000, the possibility of the contempt of court casting its shadow on the judgment of the Apex Court cannot be totally ruled out. Following a number statements appearing in the media, attributed to Medha Patkar and Arundhati Roy (who are in the vanguard of the Narmada movement), which were never denied by them,⁶⁴ the Gujarat Government moved a contempt petition against Narmada Bachao Andolan, for its criticism of the earlier order of the Supreme Court permitting increase in the height of the Sardar Sarovar dam.⁶⁵ The Court opined that, the reactions, appearing in the media, to its earlier order, were a deliberate attempt to undermine the dignity of the court and influence the course of justice and that they were one-sided, giving a distorted picture of the entire episode. It was also a deliberate move to defy its instruction to exercise restraint, to all the parties concerned, the court observed, especially when the proceedings were pending before the court. The court, however, decided not to initiate contempt proceedings against them, as it felt that the importance of the issue of resettlement and rehabilitation of project displaced persons, transcended contempt. While appearing magnanimous, there is no mistaking that there was an undercurrent of displeasure and hurt in the pronouncement made by the court. One is not too very certain that the latent feelings found expression in the final judgment, the following year, where over the same issues, facts and principles, the majority and the minority, gave opinions that are opposite to each other.

Concluding observations:

From an analysis of the contents, contours and the working of the law, as attempted here, it is evident that outdated tools are in employment resulting in a skewed sense of development. True, there is an urgent need “to go beyond compensation and re-examine the full ‘economicsof resettlement’, to rearticulate this economics around the policy objectives of restructuring and improving resettlers incomes and livelihoods”⁶⁶.But, it should not end there. Such a logic should inform and influence the basic foundations of the legal systems in their perceptions of the problems confronted and solutions offered and get articulated in specific legislative commands.

The current impaired legal vision requires a surgical operation. This should include, fundamental changes in basis legal concepts, like notions of “right”, “entitlements”, “title” and “ownership”. The changes should be such as to accept, accommodate and internalize local and indigenous conception and vision. In the absence of such a paradigmatic shift, “rehabilitating” the displaced would remain a symbolic exercise – an exercise in futility.

End Notes

* A substantial portion of the ideas expressed in the Chapter is taken from the author’s doctoral thesis entitled, “Indigenous Peoples and the Legal Order: Emerging Eco-Ethno Ethics, for which Ph.D was awarded by University of Mysore in the Year 2003.

See, “for a New Economics of Resettlement: A sociological Critique of Compensation Principles”.

2. Quoted in the blurb to, The Land Acquisition, Rehabilitation and Resettlement Bill, 2000 (Draft by Voluntary Organizations), Samaj Parivartana Samudaya, Dharwad (2000).

3. Quoted in Walter Fernandes and Vijay Paranjpye, “Hundred Years of Involuntary Displacement in India : Is the Rehabilitation Policy An Adequate Response ?”, in Rehabilitation Policy and Law in India : A Right to Livelihood, Walter Fernandes and Vijay Paranjpye (Eds.), Indian Social Institute, Delhi (1997), hereinafter referred to as Rehabilitation Policy and Law in India.

4. Walter Fernandes, Samyadip Chatterji, “A Critique of the Draft National Policy”, 11.5, Lokayan Bulletin, (March-April 95), Pp 29-40, at Pp 30-31.

5. Act 1 of 1894, dt. 2.2.1894.

6. S. 3(f)

7. Inserted by Act 68 of 1984, w.e.f. 24.9.1984.

8. Vasudha Dhagamwar, “The Land Acquisition Act : High Time for Changes”, in Rehabilitation Policy and Law in India : A Right to Livelihood, Supra n. 57, P. 111, at P. 112 ; Also see, The Land Acquisition Act and You, Vasudha Dhagamwar, Kalpana Vaswani and Enakshi Ganguly Thukral, 1991. Multiple Action Research Group, Delhi (1991).

9. Part VII Acquisition of Land for Companies, Ss. 38 - 44B.

10.Ss. 4 and 5

11.S. 5A

12.S. 6.

13.Ss 7 - 16.

14.S. 17.

15.S. 11 and Ss. 23 to 34.

16.Vasudha Dhagamwar, Surpa, n. 8.

17.S. 36(2).

18.Banwasi Seva Ashram v. State of U.P., AIR 1992 SC 920

19.(1996)1 SCC 731.

20.Ibid, at Paragraph 8.

21.Ibid, at Paragraphs 8 & 9

22.S. 3(f)(v), this clause inserted by the amendment to the Act in 1984, Act 68 of 1984 ; emphasis supplied.

23.S. 31(3).

24.S. 31(4).

25.`Save Narmada Movement’, discussed elsewhere in this segment.

26.Indian Social Institute, Delhi ; Econet, Pune ; Samaj Parivartana Samudaya, Dharwad ; Samata, Hyderabad, to mention a few.

27.Notably, the World Bank.

28.See Fernandes, Walter and Enakshi Ganguli Thukral, “Introduction : Questions in Development, Displacement and Rehabilitation” in Walter Fernandes and Enakshi Ganguli Thukral (ed.), Development Displacement and Rehabilitation : Issues for a National Debate, New Delhi : Indian Social Institute (1989).

29.The Draft National Policy for Rehabilitation of Persons Disabled as a Consequence of Acquisition of Land, Ministry of Rural Development, Government of India, New Delhi (1993).

30.Report of the Committee on Rehabilitation of Displaced Tribals Due to Development Projects, Ministry of Home Affairs, Government of India (1985).

31.For the texts of : The National Thermal Power Corporation Limited : Rehabilitation and Resettlement Policy (1993) ; Resettlement and Rehabilitation Policy of Coal India (1994) and Modified Draft national Policy for Resettlement and Rehabilitation of Persons Affected by Reservoir Projects (1994), See, Rehabilitation Policy and Law in India, Supra, n. 2.

32.For the Text of the Land Acquisition (Amendment) Bill, 1998, See, Walter Fernandes, The Land Acquisition (Amendment) Bill, 1998, Indian Social Institute, New Delhi (1998) and for an earlier Draft of National Policy for Development - Induced Displacement and Rehabilitation of Persons Displaced as a Consequence of Acquisition of Land, 1994, see Walter Fernandes and Vijay Paranjpye, Supra n. 3.

33.Smitu Kothari, “Developmental Displacement and Official Policies : A critical review”, Lokayan Bulletin 11.5 (Mar.Apr. 1995), Pp 9 - 28, at P. 17.

34.For a detailed account of manipulations that exist in depriving tribals of their lands, see, L.K. Mahapatra, “Rehabilitation of Tribals Affected by Major Dams and other Projects in Orissa”, Workshop on Rehabilitation of Persons Displaced by Development Projects, Institute of Social and Economic Change, Bangalore (1990), Pp 84-98 ; Also See, Walter Fernandes, “Development Induced Displacement in the Tribal Areas of Eastern India”, Indian Social Institute, Mimeo, 1994.

35.D.C. Sah “Development - Displacement and Rehabilitation”, in Tribal Situation in India, Vidyut Joshi (Ed., ),Rawat Publications,Jaipur, Pp 253-273, at P. 269.

36.The following are a few examples of such efforts : The Land Acquisition, Rehabilitation and Resettlement Bill, 2000 Supra, n. 154 ; Rehabilitation Policy and Law in India, Supra n. 2.

37.Several Government orders issued by Orissa, starting from 1977, were put together into a policy document for displaced persons on account of irrigation projects in 1994 ; Gujarat too has passed several Government orders including the one on Narmada oustees, but it is yet to evolve a policy or law, on the subject, as of 2000 December. Most of the Government orders passed relate to World Bank aided projects, see, Thangaraj, Sam, “Impoverishment Risks in Involuntary Resettlement : An Overview”, Paper presented at the Workshop on Impoverishment Risks in Involuntary Resettlement, The World Bank, New Delhi (Mar. 12 - 14, 1996).

38.The Maharashtra Project Affected Persons Rehabilitation Act, 1986 (Act No. 32/1989), Mumbai : Directorate of Rehabilitation.

39.Madhya Pradesh Pariyojana Ke Karan Visthapit Vyakti (Punasthapan) Abhiyan, 1985, Government of Madhya Pradesh.

40.The Karnataka Resettlement of Project Displaced Persons Act, 1987 (Act 24 of 1994), Government of Karnataka.

41.S. 2(2).

42.S. 2(c)(g) and (o)

43.S. 2(3) and (8).

44.S. 5 of Karnataka Act and S. 6 of Maharashtra Act.

45.S. 11.

46.For a critical overview, See, M.K. Ramesh and Francis Guntipilly, “A Critique of the Karnataka Resettlment of Project - Displaced Persons Act, 1987", in Rehabilitation Policy and Law in India, Supra, n.3.

47.Supra, n. 171. Also See, U.P. Legal Aid and Advice Board v. State of U.P. AIR 1991 All 281.

48.A letter received from Banwasi Seva Ashram, operating in Mirzapur District of Uttar Pradesh, registered as a writ petition (criminal) No. 1061/82 under Art. 32 of the Constitution, by the Supreme Court, Ibid, paragraph 1.

49.Order of Supreme Court dated November 20, 1986

50.Paragraphs 6 and 7 of Judgement.

51.Narmada Bachao Andolan v. Union of India and Others, writ petition (c) No. 319 of 1994, 18 Oct. 2000. A three member Bench comprising of Chief Justice A.S. Anand and Justices S.P. Bharucha and B.N, Kirpal, decided the case. The majority opinion was given by Justices Anand and Kirpal, with dissent by Justice Bharucha, on October 18, 2000.

52.Narration of facts and figures are taken from the Judgment (ibid), and various other sources ; See, O.P. Sisodia, “Sardar Sarovar Project and Fundamental Rights”, The Administrator, XLIII, Apr.-June, 1998, Pp 81-92 ; See Patrick Mc Cully, Silenced Rivers - The Ecology and Politics of Large Dams, Orient Longman, New Delhi (1996), Pp 335-343 and See, W.S.K. Phillips, “Perspectives in the Development of the Tribal Affected by the Sardar Sarovar (Narmada) Project, n Tribal Situation in India, Supra, n. 50, pp 239-251, and see Reading Materials for One Day Consultation on the Narmada Impasse and Legal Issues) (15.8.1999), National Law School of India University, Bangalore.

53.People of Six Villages whose lands were taken in early 60's to build the project colony.

54.The number of such persons is estimated to be 1, 49, 493.

55.B.D. Sharma v. Union of India, 1992, Supp. (3) SCC 93.

56.Supra n. 52.

57.With Dr. Jayant Patil, Member, Planning Commission, as the Chair Person, the Committee comprised of Dr. Vasant Gowarikar, Ramaswamy Iyer, L.C. Jain and Dr. V.C. Kulandaiswamy.

58.Supra n. 52.

59.O.P. Sisodia, Supra, n. 205, at pp. 87-88. The reason for this anomaly is that the determination of any group of people as Scheduled Tribe, under the Constitutional Scheme, is done State-wise. With the result, a group that is a Scheduled Tribe in one State, need not be so recognized in another State.

60.2000(3) Scale 505

61.Supra n. 52

62.Ibid, emphasis supplied.

63.Ibid., from Dissenting opinion of Justice Bharucha ; emphasis supplied.

64.On the contrary, Arundhati Roy went ahead, gave a number of interviews and published articles in popular journals, decrying the entire process of justice delivery and questioning settled notions about “greater common good” ; “public interest” and the finality of decision-making by the Supreme Court.

65.AIR 1999 SC 3345.

66.Cernia, Supra n. 1.