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DAM-L INDIA: article on Supreme Court and Human Rights re Narmada
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Date: Mon, 18 Dec 2000 16:07:57 -0800 (PST)
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subject: LS: The Supreme Court & human rights
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Source: The Hindu (http://www.the-hindu.com), December 6, 2000
The Supreme Court & human rights
By Balakrishnan Rajagopal
THE REPUTATION of the Indian judiciary in international human
rights circles is usually quite sound. It is seen as having
pioneered public interest litigation and as having contributed
significantly to the growth of human rights jurisprudence in
crucial areas including criminal procedure, environment and
economic, social and cultural rights.
Thus, the judgment in Olga Tellis vs. State of Bombay is often
cited on United Nations human rights fora and in academic
publications as evidence of the court's activist role in the area
of economic, social and cultural rights. Indeed, it is not too
much to claim that the Supreme Court is seen as one of the most
influential expounders of human rights, especially in this area.
Therefore, its recent decision in the Narmada case raises serious
questions about the extent to which this well-deserved reputation
may be tarnished. If implemented, the decision is likely to lead
to a massive displacement of more than 2,00,000 people in the
Narmada valley, thus earning the infamous distinction of being
perhaps the largest court-sanctioned, forced eviction in history.
In addition, the displacement will violate various human rights
of the people of the Narmada valley including their right to
housing, shelter, livelihood and cultural cohesion as a
community.
Further, the decision may also run foul of the international
legal norm against collective/mass population transfers against
the people's will, and given that a very large percentage of the
affected are also tribals and Dalits, this `development
cleansing' may well be seen as ethnic cleansing in disguise. The
reality is that no member of the upper castes or the middle/upper
classes needs to fear the loss of his home and entire community
due to a development project in India.
Had the judgment been a carefully circumscribed one that focussed
on the issues raised by the petitioners the court might have
avoided giving the impression that it was taking sides openly in
a bitter ideological conflict over the nature and meaning of
development, and the place of costly infrastructure projects such
as dams in it. Instead, it launched into the most partisan
defence of dams, defying the overwhelming evidence that is
globally available against the feasibility of large dams. The
sense one gets from reading the judgment in the Narmada case is
that for the court, the issue seems to have become one of
developmental nationalism, the importance of modernisation and
the ability of India to catch up with the West.
This stance has also been reflected in the comments by the Union
Home Minister, Mr. L. K. Advani, in the aftermath of the
judgment, that those who criticise projects such as Narmada are
foreign agents. Besides the fact that such attitudes have the
potential to generate dangerous consequences for those who
advocate peaceful criticism, the court itself seems to have
really stepped over the line from the legal to political terrain.
More importantly, the court seems to have abandoned its
established role as the protector of the human rights of the most
vulnerable in Indian society. Here was perhaps one of the most
significant peaceful human rights movements in post-Independence
India and the court's decision has sent the signal that peaceful
protests are not taken seriously anymore in the country. Indeed,
its previous activism in the area of economic and social rights
or rights of detainees arose partly from the recognition that the
court must do its part to alleviate the most oppressive
conditions of existence for the population before they turn to
extreme measures. By abandoning this crucial position, the court
has shown itself to be against human rights.
This anti-human rights position would not have been surprising 20
years ago when courts around the world were generally more
reluctant to entertain human rights challenges to development
projects. But it simply bucks contemporary global trends and
standards.
For example, the judgment in the Narmada case can be usefully
contrasted with a recent verdict of the South African
Constitutional Court - Government of R.S.A vs. Grootboom - given
on October 4, 2000. The question involved the enforcement of the
right to housing and shelter under the South African
Constitution, for a group of children and adults living in
appalling circumstances in informal settlements, whose homes were
forcibly removed and who then had to settle in desperation on a
sports field and in a community hall nearby.
In a unanimous decision, the court held that the Constitution
obliged the state to act positively to ameliorate the plight of
the hundreds of thousands of people living in deplorable
conditions throughout the country. It must provide access to
housing, health-care, sufficient food and water and social
security to those unable to support themselves and their
dependants. The court stressed that all rights in the Bill of
Rights were inter-related and mutually supporting. It said the
question was whether the measures taken by the state to realise
the rights afforded by the Constitution were reasonable. To be
reasonable, the court pointed out, the measures could not leave
out of account the degree and extent of the denial of the right
they endeavoured to realise, and those whose needs were the most
urgent and whose ability to enjoy all rights was most in peril
must not be ignored. Importantly, ``if the measures, though
statistically successful, fail to make provision for responding
to the needs of those most desperate, they may not pass the test
of reasonableness''.
Judging by this yardstick, the Indian Supreme Court's decision in
the Narmada case appears to fall far short of international human
rights norms.
Numerous other examples can be provided from around the world and
they clearly show that several countries take their
responsibility to protect human rights very seriously -
particularly economic, social and cultural rights which are of
critical importance to the survival of vast impoverished and
oppressed populations in non-Western countries.The Indian Supreme
Court, by going against this trend, has shown that it is losing
touch with human rights. If the goal of the court in this
judgment was to defend the possibility of India attaining
modernisation and equality with the West, that is hardly likely
to come about by showing the world that we are becoming less
civilised.
Copyrights: 2000 The Hindu & Tribeca Internet Initiatives Inc.
Republication or redissemination of the contents of this screen are expressly
prohibited without the consent of The Hindu & Tribeca Internet Initiatives
Inc.
---------------------------------------------------
Balakrishnan Rajagopal
Assistant Professor of Law and Development
Department of Urban Studies and Planning
Massachusetts Institute of Technology
Cambridge, MA 02139
Ph: 617-258-7721
Fax: 617-258-0382
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