Thinking the Unthinkable

Demolishing Dams

S G Vombatkere

Pandit Jawaharlal Nehru, in the dawn of our Independence, declared that large dams were the "temples of modern India". He later regretted the trend towards giganticism in development but that was never made public. So who in India would ever think of demolishing a large dam? But in USA the "model country for many Indians in power even today, dams are being demolished at an increasing pace, with roughly 900 dams removed between 1990 and 2015 with another 50 to 60 more removals planned every year (Ref. 1).

There are several reasons provided for dam-demolition (or removal) in USA, and one or more may apply in different instances. Thus, dam-demolition in USA is linked with
#    Ecology & environment—overall river restoration including fish and other marine life,

#    Safety—due to lowered structural integrity or re-assessed structural threat,

#    Economics—high operating costs or high reservoir maintenance costs or high structural maintenance costs or economic losses due to estuary sediment loss, sea water ingress, food and income from fishing, etc.

#    Social costs—recreation and aesthetics,

#    Useful-life completion—which may be some combination of the foregoing factors.

In the Indian context, an aspect not included in the "Ecology & environment" factor above is submergence of forest areas. Apart from its impact on human society, this includes several issues like irretrievable loss of wildlife & biodiversity, loss of wildlife migration routes, human-animal conflict resulting from the foregoing, generation of global-warming methane gas from submerged forests, etc.

A factor also not listed above is "Human rights", concerning the legal issues connected with forced displacement (ousting) and rehabilitation & resettlement (R&R) of populations due to dam-construction. This factor may or may not have been applicable in USA, but it is certainly applicable in India, because virtually every dam-construction has been objected to and/or resisted by project-affected populations. Indeed, since 1950, 50 million people [10 million project-affected families (PAFs)] have been displaced for dam-construction alone, even bringing some new terms such as "oustee", "PAF", "R&R" and "victims of development" into the development dictionary.

Yet another factor not listed, is "Performance" of the completed project by transparent review and assessment of whether the project has delivered the estimated benefits at the incurred costs. To date there has been no transparent review of dam projects in India.

India and USA
The principal differences concerning dams, between India and USA are:
#    India is a monsoon-rainfall country, while USA's rainfall is of the temperate zone,

#    India's population densities even in forested areas is higher than in USA,

#    USA's indigenous populations, were practically eliminated and their remnants, which were forced into "Indian reservations" in the 19th Century, could not resist dam-construction started in the late 19th Century; whereas in India, the dam-construction monster has been touching the adivasi populations in their forests only after 1950,

#    USA's experience of operation and maintenance of dams and realization of the benefits and real-time (social, environmental/ecological, economic) costs of dams, exceeds India's by decades. USA's long experience led to a landmark legislation "Consolidated Appropriations Act, 2014" on January 13, 2014, [Note 1] mentioning the document of the World Commission on Dams (WCD)—the US Congress instructed the US government and its agencies to oppose any financial or policy support to large (hydroelectric) dams.

World Commission on Dams
In the 1980s, following worldwide outcry against World Bank (WB) funded dam-construction and other large projects, the US Congress summoned WB officials to explain their lending policy. Implicitly admitting environmental destruction and social injustice, WB then made borrower-nations' preparation of National Environmental Action Plans conditional to providing development loans. [Note 2].

Escalating anti-dam protests in several countries and organized resistance against large dams prompted creation of the World Commission on Dams (WCD) in May 1998. With an innovative model of funding involving 54 public-private and civil society organizations [Note 3], it relied on extensive public consultation through forum of 68 members from 36 countries representing a cross-section of interests, views and institutions. WCD reviewed the development effectiveness of large dams to provide internationally acceptable criteria, guidelines and standards for the planning, design, appraisal, construction, operation, monitoring and decommissioning of large dams. Thus the WCD Report was the product of an independent, international, multi-stakeholder body including two corporate CEOs as Members, genuinely reflecting the interests of diverse groups. Its Report, titled "Dams and Development -A New Framework for Decision-making", was released in November 2000 by Nelson Mandela, and incorporated five core values for decision-making concerning large dams, namely: Equity, Efficiency, Participatory decision making, Sustainability and Accountability.

From the text [Note 1] of the "Consolidated Appropriations Act, 2014", it is clear that the US Congress was guided by the core values in WCD's Report. However, without ascribing reasons, India did not accept the WCD Report for planning, design, appraisal, construction, operation and monitoring of large dams, and continues to neglect its core values for decision-making. For India's politician-bureaucrat-engineer officialdom, undertaking very large civil engineering construction projects like dams is their idea of development, and the pace of dam-construction is accelerating, unmindful of the human, social and environmental consequences.

Large construction projects
Large projects have high social-ecological-economic impacts. Thus, the need for the project itself, and its effects over and beyond their planned service life, need to be considered critically and "thought-through". Large construction projects involve investment of enormous material capital and financial resources over extended periods of time. Accordingly, planning of large construction projects demands cue diligence in consideration of all applicable laws, by-laws, rules and regulations ("laws" hereinafter), and strict adherence to them through the tendering contracting and execution stages. Inadvertent or wilful violation of laws, rules and regulation inevitably brings an element of illegality into the entire project and consequent culpability of the planners/administrators, managers and engineers.

It is axiomatic that the larger the project and the greater the capital investment, the greater will be its effects. Laws concerning large constructions are enacted in order to safeguard the interests of people who may be adversely affected by the construction work or the completed project, to protect public safety and health, or protect the environment, in accordance with the Constitution of India. Violation of these laws constitute direct or indirect violation of constitutionally guaranteed people's rights to justice, equality and liberty. (It is necessary to stress, that "environment", seen by some as being only about birds and animals, trees and forests, and land, water and air ultimately concerns people, biodiversity, and the planet's ecology).

When violations of laws are discovered, revealed or reported, they should be attended to immediately, so that rectifications can be made wherever legal and possible. Neglecting to make immediate rectifications or hiding violations can only increase the seriousness and numbers of the illegalities, along with increasing the difficulty of undoing errors. Overlooking or concealing violations and illegalities is itself criminal, invariably involves corruption, and eventually leads to unacceptable time- and cost-overruns, not to mention technical quality-related issues. It also vitiates the targeted benefits that the project is to provide, besides of course impinging on the people who are adversely affected by the project, and on the environment.

In the more recent past, Courts of law have considered violations of laws in construction projects and, in cases where wilful violations are proven, have rightly ordered demolition of constructions or parts of constructions which are in violation. Violations of laws have effects on people during project-construction and/or after completion, but the illegality of the construction, once established, does not change regardless of whether the builder is a business corporation or a government.

If anything illegality of construction in projects, once established, should necessarily lead to demolition of the illegally constructed portion(s) of project(s), and should apply irrespective of the nature and cost of the project, subject of course to due process of law.

Dam Projects
Dam-construction is a mega-project involving enormous earthwork, thousands of cubic metres of concrete, submergence of forests, lands and habitations, with their combined and cumulative effects on displaced human societies, wildlife loss, forest loss, and other environmental effects (like methane gas emissions), and tangible and intangible economic losses. There are more than 4,800 large dams in India (and over 300 under construction), and not one has been constructed without affected people objecting to loss of land, property, livelihood, disruption of way-of-life and settled social structure. In every case, people's objections have been ignored, over-ruled or sidelined and they have been displaced summarily or with false promises of compensation / re-settlement / rehabilitation. Animals and trees cannot speak, but governments routinely violate or side-step environmental laws which are meant to provide them some protection.

All large projects begin with land having to be acquired according to law, for the actual construction and for use by the completed project. In a dam project, the land required for the dam and appurtenant constructions is a small fraction of the land which gets submerged when the dam is commissioned. As the dam-height is raised in stages, the submergence area increases, and along with it, the affected numbers of human habitations and displaced people, and forest area with its tree cover and wildlife inhabitants; and the downstream river flow reduces.

Commonsense dictates and the law requires, that the people who live in submergence zones—project-affected families (PAFs)—are adequately compensated for loss of their land, property, livelihood and way-of-life, by suitable resettlement and rehabilitation (R&R) measures in advance of their actual displacement due to land submergence. In large-dam projects or multiple-dam projects, the submergence area is in many thousands of hectares, and the PAFs number in lakhs (number of persons is "PAFs-multiplied-by-five"). Typically, PAFs are socio-economically disadvantaged, and mostly from adivasi and dalit sections of society living in forest areas or forest fringes. But PAFs are sometimes also from prosperous rural communities or live in towns which come within submergence zones.

For each planned stage (lift) of the dam construction upto the final stage, the R&R process includes, at the very least:
#    Land (contour) survey to accurately identify submergence areas,

#    Ground survey to identify the human habitations, determine their population and demographics, and enumerate the PAFs and their R&R entitlements in those habitations,

#    Environment and social impact assessments,

#    Identification of land outside of submergence zones into which PAFs can be resettled/rehabilitated at each stage, including environmental and social impact within the resettlement areas,

#    Budgeting for R&R, and

#    Establishing easily accessible administrative and legal means of grievance redressal for PAFs, so that they are not forced to petition distant Courts of law.

Regardless of whether the dam-builder is government or a business corporation, it is the responsibility of govern-ment(s) to ensure R&R. If R&R is not properly and adequately carried out in advance, it is a violation of the law, and more importantly, violation of the constitutionally guaranteed fundamental right to life of PAFs, thus rendering the construction of the dam itself illegal at some stage(s). This is apart from possible illegality due to non-compliance with environmental or other relevant laws.

The Sardar Sarovar Project (SSP)
The SSP dam was constructed in stages (or lifts) from 90-m to 110.64-m (110-m) to 121.92-m (122-rn) and finally to 138.68 m (139-m). Backwater levels (BWLs) were determined for various tehsils and villages based upon land survey conducted for dam-height of 122-m and 139-m governments of Madhya Pradesh (GoMP) and Gujarat (GoG). The habitations that would come under submergence according to the increased BWLs for each lift were to be determined by land contour survey, and PAFs in those habitations were to be provided R&R before construction work commenced for each stage. This did not happen systematically because different agencies (of GoMP and GoG) at different times have provided different BWLs for same physical location on ground, with the result that PAFs were wrongly omitted from enumeration. For example, tabulated BWL data (Appendix 'A') shows that GoMP's more recent survey for the 139-m dam height indicates BWLs for 26 villages lower than BWLs as per its own earlier survey, thus reducing numbers of PAFs for that stage by thousands. Also, the BWL figures by GoG refer to dam height of 122-m for the same villages, but are close to the earlier BWLs which refer to dam height of 139-m (17-m higher!). Such gross discrepancies should have been resolved before raising the dam height at relevant stages, because lives of PAFs were at stake. Thus, the lives and livelihoods of PAFs have been subordinated to the gross inefficiency of governments' engineers and surveyors and compounded by the insensitivity and callousness (and perhaps also machinations) of successive governments. Raising the dam height in the face of these obvious inaccuracies constitutes illegality because the R&R for PAFs did not precede dam-raising. The argument of illegality cannot be predicated on numbers of PAFs who were denied R&R, because even if one single PAF was denied its due, the illegality would persist, and governments' argument in court of "substantial compliance" of R&R is blatantly inhumane.

It needs to be stressed that these errors, inaccuracies or discrepancies do not merely indicate abysmal standards of engineering, but have had direct impact on the lives of PAFs who were entitled to R&R at each stage. It also shows abysmal governance which not only tolerated inefficiency but criminally colluded with it to the disbenefit of the (poor) people whom they represent and govern. When modern remote sensing and digital techniques are available, there is no reason for GoMP and GoG to not employ them to obtain reliable basic data. While there will surely be attempts to treat these matters as negligence or dereliction of duty, the fundamental illegality of raising the dam-height without prior R&R—in violation of Supreme Court's orders and simple commonsense—remains.

GoMP, GoM and GoG (and also GoI) were colluding to raise the dam-height in stages without ensuring R&R, and continued to provide the Supreme Court with blatantly false Action-Taken Reports (ATRs) of R&R completion. Therefore, to ascertain the realities of the status and progress of R&R, a Fact-Finding Team (FFT) of independent citizens visited several villages in Gujarat, Maharashtra and Madhya Pradesh on August 31 and September 1, 2007. [Note 4]. Given the numerous and persistent, reports that the reality of displacement and resettlement was different from what governments were presenting, the Team obtained a first-hand picture through "Jan sunwayi" (public hearings) and by interacting with project-affected persons. The FFT reported that there was systematic misinformation and deceit on the part of official agencies, systematic violation of the spirit and letter of the Narmada Water Disputes Tribunal (NWDT) Award as well as Court directives through false promises and assurances to both the oustees and the Supreme Court, and failure of monitoring agencies at various levels to carry out regular, thorough and effective review of the R&R process.

Recently, in the face of increased submergence areas with dam-height raised to 139-m, in order to ascertain facts on the ground, another independent Fact-Finding Team (IFFT) toured submergence areas of the project in Madhya Pradesh and Maharashtra, during 09-10 May 2015. [Note 5].

A summary of facts (Appendix 'B') was compiled by the IFFT, and it reported six major violations/infringements of law in the SSP dam construction, as follows :
1.    Violations in dam-construction. NWDT Award decisions of 2000 and 2005 mandated that dam construction will proceed according to the Tribunal's decisions, enumeration will be done according to minimum BWLs of 141.21-m, concurrence of GRA (Grievance Redressal Authority) will be obtained before proceeding with dam lifts, and construction of resettlement sites will proceed concurrently. All these have been violated.

2.   Violations in resettlement in decisions of NWDT resettlement policy and the Supreme Court decisions of 2000 and 2005, directions were issued concerning allotment of cultivable land, provision of civic amenities at resettlement sites, guarantee that submergence will not precede resettlement, and resettlement to provide a better quality of life. However, on-the-ground reality shows that these decisions have been violated.

3.   Corruption and law-related issues. In spite of Madhya Pradesh High Court's strict orders concerning corruption in the R&R process, the appointment of a judicial commission (headed by justice S S Jha), and Supreme Court's orders to ensure R&R, the Madhya Pradesh government and NVDA (Narmada Valley Development Authority) are deliberately slow and negligent. Due to this, there is corruption in allotment of plots for houses and distribution of other benefits, and PAFs are not receiving their rightful R&R dues.

4.   Gross violation of GRA (Grievance Redressal Authority) directions. It is mandatory for governments to follow the orders of the GRA, but GRA orders regarding R&R in village after village have been grossly violated. For instance: Land owners and major sons and widows of displaced PAFs have not been provided R&R; land has not been allotted for resettlement sites; extreme delay in R&R and interim relief, non-registration of fisherfolks' cooperatives, and no land allotted as compensation for houses.

5.   Violations of directions of Narmada Control Authority (NCA) and Central government. In the last few years the directions of NCA and the Resettlement Sub Committee have been ignored or not followed. For instance: Identification and purchase of land for allotment was not done; non-cultivable land was allotted; no land allotted for major sons; PAFs were trapped in the official corruption of false land registrations.

6.  Violation of adivasi rights. There was blatant violation with impunity, of progressive laws like PESA (Panchayats Extension to Scheduled Areas) Act for affected tribal areas. Adivasi village committees were not consulted before acquiring their land nor before providing the adivasi people R&R.

The reason for quoting the IFFT comprising eminently responsible persons, is that successive governments have never made public, any transparent survey of social-environmental-economic conditions, and especially R&R. However, a Group of Ministers of the former UPA government did visit the Narmada valley in May 2006 [Note 6], and reported that R&R was "mostly on paper".

The corruption in the R&R process which was brought to the notice of the Madhya Pradesh High Court was startling enough for that High Court to institute the Justice S S Jha Commission in 2008 to investigate the matter. After over seven years of work, in January 2016 the Commission reported extensive corruption in the R&R process amounting to about Rs 1,500 crore. But GoMP has resisted making the Report public, the Supreme Court has upheld this, and the contents of the Jha Commission Report remain unaction-able. The core issue is criminal denial of R&R to PAFs.

The crux of the matter is that Submergence has actually preceded R&R at more than one stage of construction, PAFs were not allotted land before submergence, and State governments have pre-meditatedly and criminally provided the Supreme Court with deliberately false information that R&R is complete, so as to obtain Supreme Court sanction to raise the dam height. Thus, corruption has resulted in denial of Supreme Court mandated R&R to PAFs at different stages of raising the SSP dam height, thereby making construction illegal at more than one stage.

The judicial approach of ordering demolition of illegal constructions therefore need to be applied pari passu to the SSP dam, as has been done in earlier cited cases. ooo

References :
1.    Wikipedia accessed on 06.8.2016.
Appendix 'A' & Appendix 'B' are attached separately.

Notes :
Note 1. The US Congress passed a Resolution, titled "Consolidated Appropriations Act, on January 13, 2014. It reads thus: The Secretary of the Treasury shall instruct the United States executive director of each international financial institution that it is the policy of United States to oppose any loan, grant, strategy or policy of such institution to support construction of any large hydroelectric dam (as defined in Dams and Development: A Framework for Decision-Making, by World Commission on Dams (November 2000)
Note 2. That this was finally dependent upon borrower-governments' responses to people's real-time, real-life issues and agitations, implemented by callous and corruptible administrative and regulatory agencies, is another matter that needs to be discussed elsewhere. Indeed in 2002, to the delight of governments, WB reverted to financing large dams which it described as "high-risk-high-reward" projects, neglecting to mention that those who bore the risk and cost by displacement were denied the benefits and rewards of the projects.
Note 3. The World Commission on Dams was financed by World Bank and Asian Development Bank; the governments of Australia, Canada, China, Denmark, Finland, Germany, Ireland, Japan, Netherlands, Norway, South Africa, Switzerland, UK and USA; corporates ABB, Voith Siemens, Manitoba Hydro, Atlas Copco, Tractabel, Enron and Harza Engineering; and civil society organizations like World Wildlife Fund.
Note 4. The Fact-Finding team consisted of Shri S C Behar, Shri L C Jain, Dr Johannes Manjrekar, Smt Krishna Mazumjdar, Advocate N D Suryavanshi, Shri Bharat Chhapar-wal, Smt Devaki Jain and Dr S G Vombatkere.
Note 5. The Fact-Finding Team Consisting of Shri Hannan Mollah (eight times MP), Smt Annie Raja (National Federation of Indian Women), Shri Binoy Vishwam (Former Minister, Government of Kerala), Dr Sunilam (twice MLA, Madhya Pradesh), Shri Punchilal Meda (former MLA, Madhya Pradesh), and Shri Ramesh Patel (sitting MLA, Madhya Pradesh), toured the SSP dam submergence areas of Madhya Pradesh and Maharashtra during 09-10 May 2015. A summary of facts from their tour report is at Appendix 'B'.
Note 6. After much agitation and satyagraha demands by PAFs, a Group of Ministers (GOM) comprising Prof Saifuddin Soz (Minister for Water Resources) and Smt Meira Kumar (Minister for Social Justice) visited Narmada valley briefly in May 2006. The crux of the GoM's report was that "rehabilitation was mostly on paper", and Prof Soz even stated that he was not satisfied with the situation of rehabilitation and was convinced that rehabilitation was incomplete and the clearance to raise the dam height was premature, once again proving that rehabilitation was lagging construction, in direct contravention of Supreme Court's order. Thus, GOM's report, even based on a brief visit, proved state governments’ ATRs as blatantly false. This was brought to the notice of PM Manmohan Sinqh. However, in the full knowledge that there were thousands of PAFs (35,000 PAFs) below the 110-m level still be to be rehabilitated and that they had nowhere to go when the monsoon commenced in July, and rather than taking cognisance of his own GOM, PM Singh callously gave the "okay" to continue work to raise the dam-height to 122-m. And, like Bhishma observing the disrobing of Draupadi, the Judiciary remained silent. Like the Pandava princes, the Legislative looked on impotently, with the Executive actively committing the atrocity like the Kaurava prince Dushasana. Thus, the violation of dharma by the Kauravas and the shameful inaction of the Pandava brothers in the Mahabharatha epic of ancient times, was re-enacted by the Indian State in the Third Millennium, six decades after Independence. Like Draupadi. the non-violently agitating PAFs of Narmada valley were attacked by the Executive within the knowledge of the Legislative and the Judiciary, and were cheated of the dharma of the Constitution.

Vol. 50, No.18, Nov 5 - 11, 2017