Bhakra dam, Supreme Court, questions

The India International Centre is the hub of Delhi's intelligentsia. On 18 April, I went there to listen to the findings of a study assessing the 'Temple of Resurgent India'- the Bhakra Dam. Through an extensively researched work, the principal author Shripad Dharmadhikary gave enough pointers to suggest that the legend of Bhakra has critical caveats and, as he said, the Bhakra's imagery of larger than life is exactly that - an image and one that is larger than life. For instance the study suggests that the Bhakra project's contribution to irrigation is severely limited – with unsustainable groundwater extraction being the real source of irrigation - and its contribution to food security has been overemphasized, perhaps to convert a story into a legend. The study concludes that the Bhakra dam and project is "a most ordinary project, an ordinary dam much like any other large dam – with all its flaws and blemishes".

The details in the report are meticulous, the arguments convincing and the sheer effort inspiring. But as I came out of the meeting the big question to me for the dedicated team was: Where do you go from here? And who's listening?

Even as I was coming out, the auditorium next door was abuzz with the sound of Arun Jaitly who was speaking on how the Judiciary in recent times might have crossed the invisible lakshman rekha and encroached on the powers of the other organs of the government. Getting in I could see the decisiveness in his tone as he said: the Supreme Court despite being fallible is final. His words immediately after what I had heard about Bhakra provoked me to think how the Apex Court has responded with the final word in a world dominated by conflicting perceptions, opinions and worldviews has responded to large dam projects.

The final words of the Court in such cases over the last two decades have a familiar ring to them. There have been petitions filed before the Apex court in different contexts and diverse grounds challenging aspects of violation of laws, but almost inevitably, they all have had a common result. Project proponents have gotten a judicial go-ahead. Even the reasons given by justices from their rulings have predictably following a pattern - that petitioners raise technical issues, those are typically policy matters and thus beyond judicial expertise and review. In fact, close examination of the cases will find this pattern in both in the apex court's operative decisions and in the reasons supporting the decisions, despite the petitions themselves being made on a variety of different grounds.

The high water mark in the line of cases was the 2000 judgment on Sardar Sarovar where despite the efficacy of dams per se being not a technical issue before the Court, the judgment put a number of strong words together extolling the virtues of large dams. That judgment was close on the heels of another verdict where the court has made it clear in the context of water pollution issues that they alone have the prerogative to draw the lakshman rekha as in its own words, 'These issues are too important to be left to the officers drawn from the Executive'. The fact that judicial aggression on environment may be out of sync with judicial deference on large projects hardly seems to matter. Because in ringing words, Jaitly says that the Supreme Court despite being fallible, definitely has the final word.

Coming out of the two meetings further questions linger in my mind. If the study like the one on the Bhakra dam has to make sense at least for the future projects, could law and policy reform be thought of as a way ahead? If there have been concerns on lack of efforts for alternatives at the time of project conceptualisation, non involvement of the people in decision making, inadequate environmental assessments and rehabilitation efforts, could specific amendments be suggested in the legal framework to enforce these aspects?

Yes, that is one way ahead and indeed, generally speaking, over the last fifteen years there have been some addition/amendments in law in the right direction. However, some of my recent visits to the command areas of two of the biggest irrigation projects in independent India - the Indira Gandhi Nahar Pariyojana (IGNP) in Rajasthan and the Sharda Shayak Pariyojana in UP - has taught me one common lesson: there are institutional structures with definitive legal mandate that have acquired a promising look on paper, but they have delivered little on the ground.

For example, both the projects had created frameworks backed by law for institutionalizing farmers' participation in irrigation management and involvement of the gram sabha and gram panchayats at the village levels and above, but most for whom the law was meant are totally oblivious of it. The story of how India's environmental impact assessment process is managed by the project proponents has been so told so often and repeatedly that it is now obvious to many that the EIA notification in the gazette papers and the way it is carried out on the ground are two entirely different things.

That being the case I wonder again what is the point of overcrowding laws with more 'enabling' provisions that almost never seem to have an enabling effect? Should I not internalise the limits of law and ignore its potential reach? With questions galore, only fatigue envelops my mind and I conclude, almost in defeat, that let those who are affected raise their own voices. They have to reach out to the law, perhaps the law will never reach them.