Wednesday, August 22, 2018

Samudra Manthan - Story of Progress

Inter-linking of rivers is important but debatable: it destroys forests, natural habitats, and uproots people. Last year, Khoj International Artists' Association staged a drama ‘Landscape as Evidence: Artist as Witness’ to emphasise the importance of evidence of artists before taking such decision. The setting was that a decision of interlining the rivers was referred to a commission and the commission was too report back its finding on the same. 
The Association approached me to play the role of the judge commissioner. When I asked them what decision was to be given, they left that to me to take an independent call. In the process of listening the evidence and deciding the same, I had a new insight to mythological story of ‘Samudra Manthan’. 
Recording of evidence in the drama
Here is my decision and new insight to the old story। You can see the drama on the YouTube here

In Re: Khoj International Artists’ Association and Zuliekha Chaudhary


HON'BLE YATINDRA SINGH, J.
The main question involved in this reference is,
‘Whether  in the light of evidence of the artists, the decision to construct a dam over rivers X and Y and interlinking them by a canal (the Project) - the first one, among the rivers inter linking plan in our country (the Plan) - should be reviewed.’
Needless to add that while considering the question, the commission will also examine, whether evidence of the artists is relevant, when decision is taken on such projects.

THE FACTS
Floods in some parts, drought and scarcity of water in others - is persistent feature of our country. The Plan is a grand engineering project: envisaging  construction of dams over rivers to store  water during rainy season; and linking them to control floods and obviate shortage of water. This is not the only benefit advocated by its proponents: they claim that it will also provide transport facilities through  navigation; broaden income source in rural areas by offering fishing as business proposition.

The Plan is not a new idea; it flip-flopped for about two hundred years. It was initially proposed in 1858 by a British engineer Sir Arthur Thomas Cotton, to provide better transport facility of goods, and to deal with drought in southern-eastern parts.

After independence, the idea was pushed in  1972 by Dr. KL Rao, the then power and irrigation minister. In 1982, Ministry of Water Resources, Government of India established National  water Development agency (NWDA). It has been producing  reports in favour of the Plan.

Politically, the Plan had mixed fortune: the NDA Government supported it; whereas, UPA had lukewarm approach to it. It got a push in 2012, when Supreme Court disposed of a public interest litigation (PIL) {Networking of Rivers, In Re 2012 (4) SCC 51} directing the Government of India to constitute  a special committee (the Committee) for carrying on the Plan.

Despite directions by the supreme court, the Committee was not constituted and a contempt petition was filed. During pendency of this proceeding, the cabinet approved to implement the direction  on 24.7.2014. Thereafter, Special-Committee was formed by Notification No. F. no. 2/15/2014- BM dated 23.09.2014, and compliance was reported to the Supreme Court {Net working of Rivers, In Re Vs Alok Rawat 2015 (12) SCC 11}.

The Committee, after considering the reports, hearing the person concerned (except the artists), has approved the Project. Its recommendations were accepted by the Central Government .

The aforesaid decision was challenged before the National Green Tribunal. It was negated. The appeal against the same was also dismissed by the Supreme Court. But it did not end the debate.

Large scale protest broke out against the Project in the area, where it was to take effect. Khoj International Artists Association and Zuleikha Chaudhary (the Petitioners) presented a petition before the Committee of Petitions, Lok Sabha for placing their petition for debate before the Parliament and requested that a commission be set up  under the Commission of Inquiry Act, 1952 (the Act) to consider, whether in view of the evidence of the artists the Project should be rolled back.

The petition was debated in the Parliament and a resolution was passed to constitute a commission under the Act. This is how the commission was constituted and I have been appointed as its sole member.

The petitioners have produced three witnesses: Shri Agarwal (PW-1), Ms. Navjot Altaf (PW-2) and Ms. Sheba Chhachi  (PW-3). The witnesses have also shown video clips made by them.

The Respondents (that include Union of India and the concerned States) have  neither produced any witness nor any evidence but relied on the material before the decision was taken.

POINTS FOR DETERMINATION
I have heard counsel for the parties.1 The following points arise  for considerations in the case:
  1. Whether evidence of the Artists is relevant before finalising projects like construction of dams, interlinking of rivers, or any other project affecting ecosystem;
  2. In case, answer to the aforesaid question is in the affirmative, then should the Project be rolled back.
THE DECISION
1st POINT: Artist Evidence Relevant
The counsel of the Respondents submits:
  1. Dams, inter-linking of rivers or such projects are necessary for progress and development of our country;
  2. Engineers, economist, environmentalist, ecologist, biologist, botanist, or person equipped with knowledge about forestry are the relevant people.  Only, they have to be consulted;
  3. Artists view the things subjectively, they lack objectivity. They neither have anything to do with such projects nor their evidence is relevant.
On the face it, the argument of the Respondents is attractive but when one goes deep into evidence produced in this case, a different picture emerges.

The petitioner has produced three witnesses. The first witness is Sri Ravi Agarwal (PW-1). He has spent time with people on the banks of Yamuna around Delhi and has made a video clip about marigold works. It shows how alluvial land can be used as sustainable business.

Ms. Navjot Altaf (PW-2) is a visual artist. She has spent time in chhattisgarh with tribes and at areas where mining activity is going on. Her video clip shows the rich vibrant tribal culture; the changing landscape of mining area¾from beautiful to ugly.

Ms. Sheba Chhachi (Pw-3) is a philosopher and makes relationship between pre-modern and modern knowledge. She makes a point about devastation due to industrialisation with the help of mythical stories. Her video clip shows how garbage around Delhi has made people working their sick.

There is no doubt that there is some subjectively in the evidence of the artists but their perception is out of sustained objective observation of the situation. It can not be said that it is devoid of reality.

In the present case, the artists (PW-1 to PW-3) have described the things as they are: the rich  culture of the tribes; their use of the land as it should be used and devastation that such projects bring about. Their evidence can not be termed as irrelevant or useless.

In my opinion, if  the artists¾that have spend time in the area, or with the people,  or where  similar projects were earlier  undertaker¾come forward and offer their evidence before decision on such projects are taken then it should also be considered.                                      
   
2nd POINT: No Rolling Back
The counsel for the petitioners submits that:
  1. The evidence of the artists is relevant. It has not been considered before finalising the Project;
  2. The decision to go ahead with the Project should be rolled back, the artists may be heard, and thereafter a fresh decision be taken. 
In my opinion, it is not necessary to do so. In a project like this, a final decision should be taken at the earliest, so that people can adjust. I have heard the evidence and seen the video clips. It would be in the interest of justice that I finally opine.

Here, there is no evidence that due to the Project any species or biodiversity will become extinct. And in any case, we can do, what was done in the case of snail darters.

Snail darter is a small fish. In US, it was only found  in Little Tennessee river. It was endangered species under the US Endangered Species  Act. Tellico dam was being built over the Little Tennessee river. This would create a reservoir and stop flow of the water. The biologists expressed concern that snail darters may not survive in stale water. A suit was filed to restrain the construction of the dam.

The suit was decreed by the US Supreme Court (Tennessee Valley Authority Vs Hills 437 US 153 = 57 Led 117) after the dam was almost complete and billions of dollars were spent. Its further construction was stopped. Dam could only be completed when the law was amended and Tellico dam was taken out of purview of the US Endangered Species Act.

But before the US law was amended and the dam was completed, snail darters were transplanted to Hiwassee river, where they are now thriving. Now, they have been reclassified to threatened from endangered. In case there is any such issue then first similar experiments be carried out and the project be undertaken only if it is successful: extinction of a species or biodiversity is irreparable.

Here, the evidence is one sided. It does not show the misery and the problems that floods and drought are causing. It does not compare the advantages to these people, with the devastation likely to be caused by the Project.

The respondents have assured that the trees will be planted, monuments will be relocated, and oustees will be rehabilitated. It is true that the oustees will lose this landscape but they will get a new one: customs can always be carried on there and traditions re-established. 

In view of above, I see no justification to review or roll back the decision regarding the Project merely because the evidence of the artists could not be presented or considered earlier. 

A CAVEAT
I have upheld the Project but such decisions are not easy. It is common knowledge that rehabilitation is  never as effective as it should be. And ecological loss can neither be replaced, nor compensated. While undertaking such project, the government should be extra cautious. It is rightly said,
'We have not inherited mother earth from our parents; we have borrowed it from our children. It is for us how we return it back to them.'
This is the golden rule that should govern our actions, our decisions.

SOME OBSERVATIONS & SUGGESTIONS
Samudra Manthan - Story of Progress
Our ancient saints instilled morals by telling a story. They mixed it with religion, gods and mythology for easy acceptance. 'Samudra Manthan' is one such story; narrated by Ms. Chhachi (PW-3). But I have different interpretation for the same. To me, the story of 'Samudra Manthan' is story for development and progress, with a warning and a caution.

Samudra Manthan Picture - courtesy Wikipedia
Churning is the effort for development. Ratna, Devi, Apasara, and Amrit that came out because of churning are the benefits of development. But poison was produced first.

In the 'Samudra Mantha' story, Lord Shiva saved the Universe by drinking it. The poison was so dangerous that had it gone inside Lord Shiva's stomach, then even he would have perished. But the legend is that poison could not go below his neck, as Devi Parvati held it there. It got stuck in his neck, saving him but turning his neck blue¾hence the name  Neelkant.  

The moral of the story is, if we wish to pursue the path of development, then before we seek it, we must have Lord Shiva and Devi Parvati, otherwise we will perish. But in these times, who is Shiva; who is Parvati?

In today's time, Shiva is the healthy practises: recycling, use of renewable source of energy, conservation and harvesting of water, construction of greener building, adoption of simpler life, and last but not the least - family planning and population control.

'दूधो नहाओ, पूतो फलो' (You may be bestowed with wealth and many children), is an old blessing and we have been blindly following it: we are just too many and multiplying. Unless we adopt family planning and control population, we will be forced to take harsher, unreasonable and irreversible decisions - for which our children will never forgive us.  In a democracy, vote counts and a vote can be cast only by humans and not by trees, not by animals, not by landscape.

In case, healthy practises are not adopted then we will perish, we require Devi Parvati to popularise them. It is here that the artists can play crucial role:  they can popularise these practises better than anyone else; and make it a mass movement. To me¾they are Devi Parvarti; they are to be encouraged.

The Central government and States will do well to encourage the healthy practises and they may take help of the artists in doing so. For this purpose, they may also allocate sufficient funds to the artists: after all it is the money that makes the mare go.

CONCLUSIONS & DIRECTIONS
My conclusions and directions are as follows
  1. The evidence of artists in not irrelevant. If at the time of taking decision on projects affecting ecology, landscape, the artists present their view then that  may also be considered;
  2. There is no justification to review or roll back the Project;
  3. The healthy practises, modern Shiva, mentioned under the heading 'SOME OBSERVATIONS & SUGGESTIONS' should be encouraged;
  4. In order to popularise healthy practises, the Central and State governments  may take help of artists, the modern Parvarti. The artists may also be allocated sufficient funds to do so.
With the aforesaid findings and directions, let this opinion along with record of the case be sent back for appropriate action.
Date: 07-04-2017
Delivering Judgement


Samudra manthan, interlinking of rivers

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