Equal compensation for equal loss

"Would a person killed by a sword be less dead than one killed by a gun?" is a question that many people losing their lands to the Sardar Sarovar Narmada dam project have often asked. The reason: the government has drawn an artificial distinction between those who have lost their lands to submergence, and others who have lost their lands to the constuction of canals. The former get the benefit of a resettlement and rehabilitation (R&R) package, but the latter are not considered eligible for it (see this earlier article).

For years, one of the key demands of the Narmada Bachao Andolan (NBA), spearheading the struggle against the dams on the Narmada river has been that all the people being adversely affected by these projects should be considered eligible for (appropriate) R&R packages, and those affected similarly should get similar compensation. A recent judgment by the Madhya Pradesh High Court delivered on 11 November 2009 has for the first time accepted this demand and asked the government of the state to provide the benefits of the rehabilitation and resettlement package to the people affected by the canals of the Indira Sagar and Omkareshwar projects.

The same order has also put a stay on any land acquisition, excavation and construction on the canals till certain environmental conditions are fulfilled, thus striking a blow for equality and accountability. The canal-affected people

The Omkareshwar project (OP) and the Indira Sagar project (ISP) are among the 30 large dams being planned and built on the Narmada. They are the third and fourth project in a cascade of four mega dams including the Sardar Sarovar and Maheshwar projects that have turned the last several hundred kilometers of the once freely flowing Narmada into a series of massive ponds of stagnant waters. The work on the projects - mainly the dams and related infrastructure has been going on for couple of decades. The work on the canals began in earnest during the last few years with land acquisition, followed by excavation and construction.

Many of the lands for the canals were acquired with very low compensation, and of course, without any R&R package. Understandably, the people started getting agitated. The canal network is close to the areas that are being affected by submergence by these four dams on the Narmada. As the area was already home to a protracted struggle by the submergence affected people, those losing lands to the canals also approached the NBA for support. The NBA took up the issue and approached the MP High Court.

The NBA pointed out that the canals were having a disastrous impact on many families. While some lost only small parts of their lands, many were losing substantial portions of their holdings. Moreover, many villages that were losing lands to the submergence of the Sardar Sarovar were also losing lands now to the canals. Some of the Sardar Sarovar affected families had been given a special rehabilitation package to buy lands in lieu of lands submerged, and in several cases, the lands purchased by them were now being lost to the canals.

What is interesting is that the state of MP had earlier adopted a policy applicable to all the projects on the Narmada in the state, that recognised the right of all affected people to an R&R package. In this policy, adopted in 1989, the definition of a displaced person included "Any person who has been ... cultivating land for at least three years before the date of [the notification under section 4 of the Land Acquisition Act 1894] in an area which is likely to come under submergence ... or is otherwise required for the project." (italics added) Thus, those losing lands to the canals would be clearly covered by this policy.

However, in 2003, the state changed the policy, and restricted the package to submergence-affected persons only. In Court, the government argued that the condition of the two sets of oustees could not be compared as there is a basic difference between those in the upstream submergence area and those in the canal-affected areas (which are in the beneficiary zone). The Government also argued that this point was upheld by the Supreme Court in the Sardar Sarovar judgment by Justice Kirpal in October 2000 where he supported the claim of Gujarat government in not giving the R&R package to the canal oustees.

This argument was not accepted by the MP High Court. The Court pointed out that the self-same judgment of Justice Kirpal had accepted that different states could have differing policies, depending upon the conditions. In the case of Madhya Pradesh, it was necessary to see the conditions of clearance and other parameters. The Ministry of Environment and Forest (MoEF), while giving clearance to the Omkareshwar project in 1993, had explicitly required that the R&R package be extend to canal affected people by "identifying and allocating suitable land as permissible".

Moreover, the 1989 policy of MP laid out differing provisions of compensation and resettlement for different levels of impact - that is, the extent of land lost etc. In this, the policy had recognised that the important parameter was the extent of impact, and not the cause - that is, whether the person is affected by canal or submergence is not as relevant as is the extent to which he is affected.

With these reasons, the HC ruled that the 2003 order of the Government of MP excluding persons in areas otherwise affected in the project from the R&R policy is "discriminatory and violative of Article 14 of the Constitution of India" and "so far as it excludes canal affected from the definition of the 'displaced family' is therefore ultra vires the Constitution." The Court then directed the Government to provide the full benefits of the R&R policy to the people affected by the canals of the ISP and OP.

This judgement is vindication of the long-standing demand of the canal oustees - equal compensation for equal loss.

Environmental accountability

The Andolan also raised another important issue in the matter. It pointed out that the environmental clearances for both the projects required the preparation and implementation of the Command Area development plans along with the project. In fact, the clearance for the Omkareshwar project required that the project should be "initiated only after ensuring that all arrangements to execute the environmental mitigative measures have been made a part and parcel of the project."

The Court expressed its considered opinion that the command area plans for both the projects were required to be submitted to the appropriate authority before the commencement of the work of canals, so that the authority could scrutinise them and ensure that the environmental measures were properly planned and could be implemented along with the engineering works.

In view of the importance of this, the Court ordered that the command area development plans should be submitted to an expert committee of the MoEF that had been set up in September 2008 for the ISP and Sardar Sarovar projects, but asked by the MoEF in September 2009 to also look into canals and command area development of the Omkareshwar project also. It further directed that no work on acquisition of land, excavation or construction of canals should be undertaken until the expert committee communicates its clearance in the matter.

Considering that the ISP got the environmental clearance in 1987 and the Omkareshwar project in 1993, this order is very important - in that it demonstrates that it is never too late to enforce and ensure accountability.

Another round ahead

Certainly, the High Court's judgment is welcome, and is a striking blow for rational and equal treatment of project-affected families, as well as for accountability in environment protection.

It is significant that the National Rehabilitation and Resettlement Policy adopted by the central government in 2007 also includes in the definition of the "affected people" those who lose their lands to any part of the project, thus making even the canal affected people eligible for the R&R package. In fact, the policy goes further and includes not only those directly affected by the loss of land, but even those who are landless but lose their livelihoods due to such acquisition. The Draft Bill that aims to convert this policy to a law introduced in the Parliament in 2007 also had similar definitions for the affected families. In this way, the High Court Order has created a legal force behind the emerging policy intentions.

However, the state government and project authorities haven't given up their quest. They have now challenged this order in the Supreme Court, so the final and operative word on this will have to await the proceedings and order of the highest court of the land. (update December 18: The SC declined to stay the HD judgment, and set the next hearing for January 19 2010).