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On the morning of the 18th of October the three judge bench of the Supreme Court delivered its verdict on the PIL filed by the Narmada Bachao Andolan against the Union of India and the state governments of Gujarat, Maharashtra and Madhya Pradesh. After six-and-a-half years of litigation, the primary imperative of what has come to be called `the majority judgment' by Chief Justice Anand and Justice Kirpal is that the construction of the (currently 88 metre high) Sardar Sarovar Dam be completed as `expeditiously' as possible. Further, it says that the court ought to have no role in deciding such matters. (Ought it to take a six year legal injunction and three Supreme Court judges to come to this profound conclusion?) Justice Bharucha, the only one of the three judges on the Bench to have heard the case through from the time it was filed, wrote a dissenting judgment, detailing the reasons why he could not bring himself to agree with his brother judges.

In an earlier essay on the Narmada valley, The Greater Common Good, (for which I was rapped on the knuckles by the Supreme Court), I described how successfully the Indian State has used all the institutions at its command - the army, the police, the bureaucracy, the courts - to achieve what it set out to achieve. To appropriate India's resources - including its land, its forests, its rivers - and redistribute them to a favoured few. The Indian State is superbly accomplished in the art of protecting the cadres of its paid-up elite and pulverising those who inconvenience its intentions. Its finest feat of all is the way it achieves all this and emerges smelling sweet. (After all, we're not Burma, or Indonesia, or Rwanda or even Pakistan. We're the proud citizens of the world's biggest democracy.) If you want a quick fix on how the smell is sweetened, a sort of Lazy Person's Guide to The Way India Works, read the two Supreme Court judgments side by side. Had Justice Bharucha chosen not to place his dissent on record, we would never have known the unimaginable process by which the Sardar Sarovar project insinuated itself into the world. For this, I doff my cap to Mr Bharucha. Thank you sir.

In 1961 Nehru laid the foundation stone for a 49.8 metre high dam - the midget progenitor of the Sardar Sarovar. In 1979, after the Narmada Water Disputes Tribunal announced its award, the Sardar Sarovar was redesigned to be a massive, 138.68 metre high dam, which, though located in Gujarat, would submerge villages in Madhya Pradesh and Maharashtra.

In 1985, before any detailed studies had been done, before any costs were computed, before anybody had any idea what the human cost or environmental impact of the dam would be, even before the Union ministry of environment cleared the project, the World Bank sanctioned a 450 million dollar loan. (Eight years later, in March 1993, after commissioning an Independent Review, which said that the project was inherently flawed and that rehabilitation would be impossible, the World Bank withdrew from the project. This does not absolve it from the sin of setting the ball in play.)

As soon as the World Bank load was in place, the state governments set up an unseemly clamouring for the project to be approved by the Ministry of Environment and Forests regardless of the fact that no proper studies had been done. In his judgment, Justice Bharucha documents this process in detail, quoting note after incriminating note.

In October 1986, a Note was prepared by the Ministry of Water Resources on the environmental aspects of the Sardar Sarovar project. It said that the clearance of the projects from the environmental angle and under the Forest Conservation Act 1980 had become a matter of urgency for the governments of Gujarat and Madhya Pradesh (that luscious loan was waiting). The Ministry of Environment and Forests said that it was doing its best ``but have been finding the material submitted inadequate and unsatisfactory.'' Under a sub-heading ``Should the project be taken up at all?'', the Note said that abandoning the project was not advisable even though critical information (which would take at least three years to collect) was not available. There is a remarkable, Kafkaesque section in the Note: ``with the project postponed for three years and with no assurance at the end of that period that the decision will be positive, it is difficult to believe that all these studies, surveys and plans relating to the environmental aspects will be pursued with energy and enthusiasm and the necessary resources devoted to them. In other words, the postponement of the decision in the interest of collecting information...may in fact prove to be a self defeating exercise.''

In other words, the government sees no point in doing studies unless it already knows the outcome will be favourable to the project. (And, axiomatically, if it already knows the outcome, why bother with the studies?)

On November 20, 1986, another Note was prepared by the Ministry of Water Resources and forwarded to the Additional Secretary to the Prime Minister. Considering the fact that basic data on vital aspects of the project was still not available the Note says ``there could be but one conclusion, that the project(s) are not ready for approval.'' Yet on January 15, 1987 a note was put up to the Prime Minister by his Secretary, seeking his approval for conditional joint clearance of the Sardar Sarovar and Narmada Sagar projects. The Department of Environment and Forests said that the rehabilitation plan was not ready, that land had not been surveyed, that areas of land use capability and water availability had not been identified and the land being suggested for rehabilitation, prima facie appeared to be infertile. The PM's Secretary, however, said that the project had been waiting for clearance for over seven years (what were they doing all that time?) and that the chief ministers of MP and Gujarat were ``keenly awaiting'' it. On January 19, 1987 the Prime Minister (Rajiv Gandhi) jotted a hand-written comment on the note: ``Perhaps this is a good time to try for a River Valley Authority, discuss.''

This is the only thing on record that constitutes the `Prime Minister's clearance'. This single throwaway sentence is then used to announce to the press that the projects have been cleared. The file is judiciously fattened with various notes and letters from the state governments hailing the clearance.

On June 24, 1987, based on what the Ministry itself called inadequate information, the Ministry of Environment and Forests gave a clearance to the projects subject to several conditions including a Catchment Area Treatment Scheme, Command Area Development Plan and the submission of a Rehabilitation Master Plan. In his dissenting `minority' judgment, Justice Bharucha says ``An environment clearance based on next to no data in regard to the environmental impact of the project was contrary to the terms of the then policy of the Union of India in regard to environmental clearances and, therefore, no clearance at all.'' His judgment goes on to say that it was mandatory under the conditions of clearance that catchment area treatment and the full rehabilitation of all displaced people be completed before any water is impounded in the reservoir. According to Justice Bharucha, the fact that this has not happened constitutes a clear violation of the conditions of clearance. He says that in the 13 years that have passed since the conditional clearance, no comprehensive environmental impact assessment has been done. For all these reasons the dissenting judgment says that the project must be sent back to the Ministry of Environment for fresh clearance after proper studies have been done.

The `majority judgment' however, sweeps this aside calling environmental clearance ``only an administrative requirement.'' Only an administrative requirement? Environmental clearance for two dams whose reservoirs will, between them, hold more water than any other reservoir in the Indian subcontinent is only an administrative requirement? What sort of precedent does this set for the planners of the 695 big dams that are being planned and constructed in India right now? Should they throw darts at a map where they want to build a dam and then go ahead and build it? Will the Supreme Court support them pari pasu?

The `majority judgment' actually goes on to blame the NBA for filing the petition so late. ``For any project which is approved after due deliberation (notice how in the course of 13 years a Prime Minister's casual one-liner becomes `due deliberation') the Court should refrain from being asked to review the decision...Pleas relating to height of the dam and the extent of submergence, environment studies and clearance, hydrology, seismicity and other issues except implementation of relief and rehabilitation, cannot be raised at this belated stage.''

What this means is that the government sees no point in doing studies before the project starts, and that citizens have no right to question it once construction begins. The message from the highest court in the land is pretty clear: Poor? Adivasi? Dalit? Happen to live in the submergence zone of a big dam? Tough luck. Go away, and go quietly.

The `majority judgment' decrees that the project should be completed according to the guidelines of the Narmada Water Disputes Tribunal Award under the supervision of the Narmada Control Authority (NCA), supposedly an independent authority. The Chairman of the NCA Review Committee is the Minister of Water Resources. The Chairman of the NCA itself is Secretary, Ministry of Water Resources. (Round and round the apple tree. Little partner dance with me...) Never mind that for 13 years the NCA has consistently violated the Award of the Tribunal, which is what led to the filing of the petition in the first place. Despite this shocking record, their lordships see no reason to ``assume that the authorities will not function properly.'' In October 2000, 13 years after the so-called ``environmental clearance'' and commencement of construction, the court asks the NCA to produce within four weeks a Rehabilitation Master Plan which they haven't managed to produce in 13 years. Mind you, we're still talking of a plan --not of actual rehabilitation.

In 1979, the number of families that were to be `officially' displaced by the SSP was 6,000. In 1987, it was 12,000. In 1991, it surged to 27,000. In 1994, when the petition was filed it was 41,500. That's more than 200,000 people. Today God knows what the real figure is. The court has it on affidavit from the government of Madhya Pradesh (the state to which 80 per cent of the displaced people belong) that it has no land for rehabilitation. In the last 13 years, since construction began, MP has not provided a single hectare of agricultural land for rehabilitation. What's more, the governments of MP and Maharashtra have said under oath on legal affidavits that 368 families who have been displaced by the present height of the dam (88 metres) have not been given land. (Of course the MP government doesn't mention the 114,000 oustees from the Bargi Dam and the 30,000 oustees from the Maheshwar Dam and the indeterminate number of oustees from all the other dams it has planned, who have also not been given land).. And yet, the Supreme Court of India clears the immediate raising of the dam height up to 90 metres.

In other words, it orders the violation of the Tribunal Award. For the BJP government in Gujarat this comes as a life-raft. Having suffered a severe setback in the local panchayat elections, the judgment couldn't have been better-timed for the Gujarat government had drafted it itself. The perfect Diwali gift for a perfect government. Honestly, some people have all the luck.

After having repeatedly prevented the NBA from making any submissions in court on the merits and demerits of Big Dams, the last few pages of the `majority' judgment launch into a badly written eulogy to big dams based on no evidence whatsoever. Two quotes, two points:

(a) The petitioner has not been able to point out a single instance where construction of a large dam has, on the whole had an adverse environmental impact. On the contrary the environment has improved.

Maybe their lordships don't travel very much. They could go to Punjab and have a water-logged weekend in the command area of the famous Bhakra Nangal Dam. Or stay at home and read the study of 300 projects by the Expert Committee on River Valley projects which found that 89 per cent of them violated the guidelines laid down by the Ministry of Environment. Or just keep in mind that despite India's 3,600 Big Dams, drought-prone and flood-prone areas have actually increased since 1947, that 200 million Indian citizens have no access to safe drinking water, that not a single river in the plains has potable water, and that 10 million hectares of irrigated agricultural land are currently saline and water-logged.

(b) At the time of Independence foodgrain was being imported to India but with the passage of time and the construction of more dams the position has been reversed. The large-scale river valley projects per se all over the country have made India more than self-sufficient in food.

I thought so too, your lordships. Until I began to look for some official, government facts to back that thesis up and found that there weren't any. Until now no studies have been done to determine what percentage of India's foodgrain is produced by big dams. To believe that Big Dams are the key to India's food security is to have faith without facts because facts don't exist. At least they didn't until recently. This year, a chapter in the India Country Study done for the World Commission on Dams (whose report will be released in London by Nelson Mandela on November 16) says that 10 per cent of India's foodgrain is produced by big dams. That's 20 million tonnes. The Ministry of Food and Civil Supplies says that 10 per cent of India's foodgrain is eaten every year by rats. And that's 20 million tonnes. We must be the only country in the world that builds dams, uproots millions of people (56 million people in the last 50 years according to the India Country Study), submerges forests and destroys the environment in order to feed rats. Clearly we need better warehouses more than we need Big Dams.