INTERSTATE RIVER WATER DISPUTES: AN OVERVIEW ON NARMADA RIVER OUTCOME

INTERSTATE RIVER WATER DISPUTES: AN OVERVIEW ON NARMADA RIVER OUTCOME

Written by Manisha Navlani

 

ABSTRACT

Jawaharlal Nehru, India’s Prime Minister once called dams the ‘‘temples of modern India[1].’’ His analogy is invoked to support the view that building large dams is essential to meeting India’s development needs. Though he later called large dams ‘‘a disease of gigantism’’, the drive to build large dams for the sake of building dams continues to blind the government to their human and environmental costs. Here arises the issue of development versus sustainability. Here bone of contention was sharing of river water between Madhya Pradesh, Maharashtra and Gujarat resolve the dispute over sharing the benefits of utilization of the river Narmada.

I would firstly deal with the NWDT relied on the Helsinki Rules on the Use of Waters of International Rivers that were framed by the International Law Association in 1966 as this customary international law also governed the use of waters of a river basin that spans more than one sub-national province. The paper will further focus on opposition by the affected people majority of which were from Scheduled caste. The World Bank Independent Committee Report. They found the affected people were not even properly consulted and various other mistakes done by Government even benefits arising out of the dam were shown much higher. In the end paper concludes analysis of rehabilitation of the affected people and with The Supreme Court in this decision decided to embrace State’s agenda to carry on this project which would result in the displacement of large number of people.

 

Keywords: Narmada, Helsinki Rules, NWDT.

 

 

 

 

 

 

 

INTRODUCTION

 

 

“Every society is based on hydro-politics”.

Karl Wittfogel

 

Water is among the basic requirement of humans. The water is requisite to human life; therefore proper mechanism must be in place to reduce the possibility of conflict. We are moving towards modernity in which forest submergence due to construction of dam was seen necessary sacrifice for a common good[2].

Jawaharlal Nehru, India’s Prime Minister once called dams the ‘‘temples of modern India[3].’’ His analogy is invoked to support the view that building large dams is essential to meeting India’s development needs. Though he later called large dams ‘‘a disease of gigantism’’, the drive to build large dams for the sake of building large dams continues to blind the government to their human and environmental costs.

The Narmada River traverses three northwestern states of India’s Madhya Pradesh, Maharashtra and Gujarat. In 1978, the Indian government sought the World Bank’s assistance to build a complex of dams along the river as part of the Narmada Valley Development Project.

According to Mahesh Rangarajan, Indian environmental historian the Narbada Bachao  Andaloan  attempted to expose contradictions and fallacies in governmental  claims about the benefits of dam construction. Contrary to the Gujarat government’s assertion that the Sardar Sarovar dam would be able to satisfy the water needs of the arid regions of Kutch and Saurashtra but the NBA found water would reach only 1.5% of Kutch’s total cultivable area, and only 7% of that of Saurashtra.

Most would be served to already water-rich central Gujarat. Before the NBA forced them to do so, the government never performed a cost-benefit analysis. The government must admit that it had both exaggerated benefits.

Under Article 262 of the constitution, the Inter-state Water Dispute Act was constituted which empowered Central government to constitute tribunal in case of failure of direct negotiations. One of the main reasons for establishment of separate tribunal is to lessen the non-interference of state politics and to sustain the regional harmony[4].

 

INITIAL RESOLUTIONS

In 1964 the Narmada Water Resources Development Committee was constituted under chairmanship of Dr. A.N Khosla to resolve the dispute over sharing the benefits of utilization of the river Narmada. The committee made recommendations as per which water in the river was used up for irrigation and power generation irrespective of the social and environmental implications. The state of Gujarat accepted the Kholsa committee’s report but Maharashtra and Madhya Pradesh rejected the same.  To settle the issue several meeting of the chief ministers of three states were did not result into any viable solution. In 1968 Gujarat government petitioned for the appointment of tribunal under the Inter-state Water Dispute Act, 1956. In 1969, the tribunal was formed to settle the dispute over apportionment of the waters of river Narmada among Maharashtra, Gujarat, Rajasthan, Madhya Pradesh and also height of Navagan dam were put forth before the tribunal.

After the award by the tribunal there was “Narmada bachao andolan” due to submeregence of fertile land due to enhanced height of the dam. By this time Gujarat government applied to World Bank for a loan to facilitate development of the dam and its report required that impact assessment studies should be carried out before further proceeding. In 1980 the Environment Protection Act was passed, the act made it compulsory to get approval from Ministry of Environment and Forests for diversion of forest land for non-forest use.  In accordance with the orders of the NWDT the Narmada Control Authority (NCA) was set up to ensure the implementation of its award and to oversee the proper measurement and development of water resources in the basin.

An EIA of a project was mandatory for obtaining permission from the MoEF.

EIA requires impacts and the remedial measures necessary and their costs. It also requires public hearings in the project. This meant that work could not start on two main projects that is SSP and NSP. While deliberation were going on between World Bank and government. As tribunal made till that date most progressive provisions for rehabilitation and resettlement. The World Bank came with staff appraisal report, it stressed on proper rehabilitation of affected people. It also recommended that landless and encroachers should compensation in par with landed oustees. In 1986 loan was sanctioned by WB. The Ministry of water Resources agreed with the assessment as state of Gujarat and M.P were keen to go ahead with project. But the Ministry of Environment and Forests gave a conditional sanction of catchment treatment and compensatory afforestation.

 

PROGRESIVE STEPS

The tribunal award of proper rehabilitation and resettlement, the implementation of the same was to be monitored by NCA was a progressive step. Even the mandatory requirements of EIAs and public hearing for affected people. Thus bypassing of these provisions was a gross violation of Fundamental right as affected people were directly and adversely affected[5].

 

THE WORLD BANK INDEPENDENT REVIEW COMMITTEE REPORT

 This committee conducted a review of Sardar Sarovar Dam. The committee did critical analysis and observed that Helsinki rule and UN Convention on International Watercourses as it dealt with the social and environmental issues arising from mega projects. It showed the failure on the part of Indian Government as the people potentially to be affected were not consulted especially the tribals. Relocation and resettlement of few people was far from satisfactory. In case of Madhya Pradesh, there was limited availability of suitable resettlement lands, failure of consultation. Ever proper measures to anticipate and mitigate measures were not assessed properly. There was huge disparity between Gujarat Policy of resettlement and rehabilitation and that of Maharashtra and Madhya Pradesh which made outees right to choose relocation and resettlement meaningless. Even resettlement has lead separation of families. It was found that there were discrepancies in the hydrological data indicate that SSP will not actually perform as it was thought of. One of the stated priorities was of delivery of drinking water but there were no proper plans available to review the same.

Hence these criticism were prevalent not only SSP but many other large dames under construction on Narmada basin. After this intense pressure was put on the World Bank by environmental, tribal and human rights groups across the world which led to withdrawal of funds for SSP[6]. The World Commission on Dams, a body supported by UNEP and IUCN laid on its 2000 report that dams are environmentally unsound and effects are powerful and are of long term nature[7].

 

MATTER IN SUPREME COURT

In 1994 NBA filed a writ petition in Supreme Court arguing that fundamental right were being denied to ousters especially tribals which was against the public interest as government was incapable of providing resettlement and rehabilitation as well as project would adversely affect the environment through water logging, forest submergence which was not totally compensable by afforestation, chances of malaria epidemic. The Supreme Court granted stay on SSP and judgment was pronounced after 4 years in 1998. The court held the basic issue to be decided is whether policy decisions taken by government in 1987 were good or bad. Supreme Court held that government’s assessment that SSP can solve the issue of water scarcity and in the post independence period dams has helped in solving various problems like water and food shortages. The court did not consider the Morsi committee report; Supreme Court stated that veracity of government’s assessment cannot be doubted. The court held tribunal has made adequate measures of resettlement. There was Grievance Redressal Authority had been set up to work on complaints on rehabilitation. Hence forth the court held there was no need to approach the court again as there was already a competent body setup to look after complaints.

 

Postulates laid down by Supreme Court regarding governance in water sector

  1. The tribal will be befitted by the replacement as this would help them to become part of mainstream economy and society.
  2. The government and its agencies have to be trusted when they carry out the impact assessment, rehabilitation measures and measures required to offset negative environmental consequences.
  3. The government and its agencies created know “reasonable and equitable” use of water resource and any group of citizens challenging government understanding cannot claim any authenticity[8].

 

In this majority judgment, the principle of “Precautionary principal” was rejected judges said dam is not a polluting industry and will not cause ecological degradation. Post-independence few dams have been constructed which never proved to cause environmental degradation.

 

Rehabilitation and Resettlement 

The Land Acquisition Act of 1894 just compensates the land owner in cash according to the value of the land recorded and no heed is paid to social and environmental cost suffered by land owners.  Even the government record themselves show 75% of the affected people have not been properly rehabilitated and these people suffer immensely. Here in this case the government of M.P and Maharashtra lobbied hard for good provisions for the displaced people. As a result NWDT award for the rehabilitation and resettlement as follows:

  1. There should be active participation of affected people especially in resettlement plan.
  2. The affected people should be provided with adequate compensation, social and physical rehabilitation.
  3. The affected people should be integrated with the village of the host community.
  4. The resettlement policy should be such that project-affected families improve, regain their standard of living which they were enjoying prior to displacement.

Because of the mass mobilization these provisions did not just remain on paper but were actually implemented.

 

The implementation of the NWDT award meant that project cost was shot up. But in case of Madhya Pradesh there were deficiency in implementing the award. Some of the tribal people living in Jhabua,  Dhar, most oustees from M.P have stayed on there and have been just given cash compensation which shows M.P government did not completely followed award. Hence there has been governance failure with reference to rehabilitation and resettlement. Since majority of the affected people involve tribal’s residing in scheduled areas as notified under the Fifth schedule of the Constitution, henceforth the failure on the part of government to hold consultation with affected tribals is violation of their constitution entitlements. Now it has become mandatory to take permission of Gram Sabha before implementing any project in scheduled area as per Panchayat Extension to Scheduled Areas Act 1996[9].Its height stayed at 453 feet and has capacity of 5,800,000,000 cubic meters. Around 70000 people were displaced and resettled, mostly in Gujarat[10].

 

CONCLUSION

Due to interstate water sharing, construction of dam resulted into displacement of many people of villages as well as of tribal living in Scheduled Areas as award of NWDT not was not properly implemented especially by government of Madhya Pradesh. The Supreme Court in this decision for the first time decided to embrace the action of State’s agenda of major infrastructure project at the cost of environment. Hence more importance was led down on economic development.

[1] Jawaharlal Nehru, Prime Minister of India, Speech at the Opening of the Nangal Canal (July 8, 1954).

[2] Padam Nepal, How Movements Move? Evaluating the Role of Ideology and Leadership in Environmental Movement Dynamics in India with Special Reference to the Narmada Bachao Andolan, hydro Nepal issue no. 4 January, 2009

[3] Jawaharlal Nehru, Prime Minister of India, Speech at the Opening of the Nangal Canal (July 8, 1954).

[4] Dr Arup Kumar Poddar and Sanjukta Bhattacharya, Final order of cauvery river water disputes, 1st December, 2008, http://ssrn.com/abstract=2008550

[5] Agrawal, A & Narain, S Dying Wisdom: State of India’s Environment a Citizen’s Report, Centre for Science and Environment, New Delhi, 1997.

[6] Morse, B Sardar Sarovar: The Report of the Independent Review, Resource Futures International, Canada, 1992.

[7] Karthik suresh, Narmada bachao andolan, etc. V. Union of India and others, Nalsar University of law, Hyderabad

[8] Rahul Banerjee, Arohi Trust, Review of Water Governance in the Narmada River Basin, 2010.

[9] Ibid.

[10] karthik suresh, Narmada bachao andolan, etc. V. Union of india and others, Nalsar University of law, Hyderabad

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