RECENTLY, THERE has been an attempt to besmirch the reputation of the Narmada Bachao Andolan (NBA) in the public eye. Greater concern attaches to the fact that on 11 May, the Supreme Court (SC) criticised the ‘conduct’ of the NBA, which stood “discredited in the eyes of the court” and was “guilty of suppression or failure to disclose facts”.
What an indictment! This conclusion has been arrived at on a wrong impression and without due process. First, the supposed lapse of the NBA was that it had strongly argued that five villages, which the government wanted to shrug off responsibility for, could not be released from acquisition. NBA’s pleadings clearly say that on paper, possession was taken, but the ‘oustees’ were in actual possession of the area that was prone to temporary submergence. No mistake so far. Second, the court pounced on oral arguments by NBA counsel Sanjay Parekh as asserting lack of actual physical possession by oustees. It is thus clear that no responsibility can be attributed to the NBA and, if at all, to the over zealousness of a counsel who was misunderstood. Third, before an inspection ordered by the apex court, NBA activists clearly gave the correct position consistent with its pleadings. NBA’s bonafides were, thus, intact.
Fourth, what happened was that perjury notices on this count were initiated against NBA activists when they entered their defence. Unfortunately, without examining the defence, the court discharged the perjury application depriving NBA of a proper defence. This was a complete failure of justice so that heavy strictures were passed on the NBA without even hearing them in their own defence — for which Justice Sachar was ready for argument. If any high court had done this, the SC would have excised these remarks from the judgment. Unfortunately, the SC is infallible because there is no court above it. Now, the NBA cannot be represented in public interest litigation (PIL) except through amicus curiae if required.
The judgment on the Omkareshwar dam project in Madhya Pradesh is wrong on other counts, including not giving land to the adult son, which was clearly envisaged by the rehabilitation scheme. Some judges in the SC are mindful of human rights in ‘oustee’ and land acquisition cases. Justice Chauhan (for himself, Verma and Panchal) did not display this sensitivity — with Justice Chauhan, perhaps jokingly, claiming to be a displacee himself during arguments.
BUT THERE is another reason why the judgment makes me wary. In a celebrated article by Marc Galanter on Why the haves come out ahead (1972), it is cogently argued that litigation is not just law, but the strategic mobilisation of institutional experience — especially by experienced corporate and other litigants who have learnt to play the game. The poor, illiterate and under-resourced have to be represented by organisations like NBA to alter the balance of litigation power. In labour law, trade unions have made the difference to take on corporates and government. Litigation is part struggle and part strategic war. To deny the disadvantaged institutional support is to make PIL meaningless for them.
The poor have to be represented by the likes of NBA to alter the balance of litigation power
If the SC had checked its records, it would have found the court praised the NBA in many cases other than one incidental statement against them in 1998, resurrected by Justice Chauhan where the activists celebrated the stopping of the dam.
No one argues that PIL litigants do not have the duty of care. In this case, the SC was wrong on facts, denied due process and made unjustified comments. It is an unwarranted attack on an organisation that has protected the justice due to oustees in a responsibly professional manner. That the judgment is wrong on other grounds is doubly unfortunate.
I appeared in this matter and am forced to set the record straight.
Rajeev Dhavan is a constitutional expert.