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A brief note on the landmark judgement

Excerpts from the Judgment given far below)
12 July 2007

Dear friends,

You must have already heard of and read the news of the Supreme Court judgment passed on 10th July, dismissing the petition by National Council for Civil Liberties (NCCL), a Gujarat based NGO, against the Andolan. The allegations included that of illegal funding, being foreign stooges, and misusing foreign funds for destabilizing and anti-National activities as well as sedition. The court's judgment has categorically condemned the petition to be vague and making baseless accusation. These allegations were publicly made by the same petitioner i.e. NCCL, through various newspaper advertisements all over the country since last many years. Hence the judgment has indeed indicated NBA's honest position and commitment against the vilification campaign.

This, we know, would not have been possible without supportive action by eminent persons and organisations including yourself and the committed and effective pleading by our advocates Indira Jaisingh-ji and Sanjay Parikh-ji. The court, while dismissing the case, concluded it to be not a public purpose but a private purpose litigation. It has upheld the case of the project-displaced persons raised by NBA and refused to concede to the demand for CBI enquiry, since there is nothing anti-national found in NBA's activities, proved through the petition, or illegality in funding established. This victory, moral as also political, in the larger sense of the term, has come to us, in support of not just NBA but all people's movements.

When the petitioners raised a tricky issue of NBA challenging development projects and the state, the judgment has declared the cause to be legitimate and not anti-national. This will, no doubt, strengthen people's struggles questioning the vision, problems and the backlash of development, in the framework of human rights and civil liberties.

Many organisations, eminent individual, supporters stood by us during the testing times, many issued statements, wrote personal letters in support, condemned the defamatory campaign openly (since 2000) all of which gave us enormous strength and confidence to face the immoral attack. Since the physical onslaught at Sabarmati Ashram in Gujarat (2002), the attackers were making dictated statements to instill a doubt in the minds of common people, our supporters as well as international awarding organisations. The latter were written to and questioned even when NBA has never accepted many of international awards, but only the felicitation and certificates.

When movements are facing multiple challenges on behalf of the State, when people's strength is being repressed and their views on development - just and sustainable- undermined, peripheralised, even condemned, when the corporate-political nexus is up with all tools and weapons, either to push their own development agenda or to suppress the alternatives, this judgment would go a long way. We will remain together as always and fight battles for truth and justice.

DO COME TO THE NARMADA VALLEY

Satyagraha begins in adivasi village, Chimalkhedi, (Nandurbar district, Maharashtra) on the Narmada bank in Maharashtra, from July 17th. The water level in Narmada is rising and currently at least 200 villages are under the threat of submergence due to Sardar Sarovar Project. People affected by Omkareshwar and Indira Sagar dams are already on the streets, since last 40 days, and the fast by Chittaroopa Palit and Bhagwan Mukati has entered 36th day. For the reasonable demands of rehabilitation to be met in this context, your support in every way is most valuable and necessary. We shall look towards a new paradigm of equitable development. No submergence and displacement without rehabilitation, a comprehensive enactment of just development.

Ashish Mandloi, Yogini Khanolkar, Kailash Awasya, Medha Patkar

RELEVANT SECTIONS OF THE JUDGMENT is given below which speaks for itself. Please make use of this judgment for writing and reference. The full judgment will soon be available at www.narmada.org

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.69 OF 2006

NATIONAL COUNCIL FOR CIVIL LIBERTIES …..Petitioner

Versus

UNION OF INDIA & ORS. ……..Respondents

J U D G M E N T

ALTAMAS KABIR, J.

..…31. Both the Union of India and State of Madhya Pradesh had little to add and they relied on the affidavits filed on the behalf in the proceedings. In the counter affidavit filed on behalf of the Union of India, it has been generally stated that the Ministry of Home Affairs in its Foreign Contribution Regulation Act Division had not granted permission to the respondent N0.4 or certain organizations named in the writ petition to receive foreign funds. However, it has also been categorically stated that an inspection was carried out in terms of Section 14. of the Foreign Contribution (Regulation) Act, 1976 into the books of accounts of among others the Narmada Bachao Andolan, Badwani, Madhya Pradesh in 2002 and the same did not reveal any instance of violation of the aforesaid Act. A similar enquiry had also been conducted in 2000 and then also no such violation had been detected, The said information was conveyed to the Chief Minister of Gujarat by the Minister of State Ministry of Home Affairs Government of India, by letter dated 26th August, 2003. The contents of the said, letter has been made annexure R-1-1 to the affidavit affirmed on behalf of the Union of India and reads as follows-

“Kindly refer to your letter N0. CMS}GO1) 150 dated the 27 September, 2001 addressed to the Hon’ble Dy, P.M. regarding alleged violation of Foreign Contribution (Regulation) Act, 1976 by the functionaries of Narmada Bachao Andolan (NBA).

This matter was investigated in some detail under the provision of the said Act. The accounts records of the NBA and a number of NGO associated with it were inspected but no specific instance of any violation of FCRA, 1976 was detected.”

32. In the affidavit affirmed on behalf of the State of Madhya Pradesh, it has been stated that existing laws were sufficient to take care of the reliefs claimed, by the writ petitioner and appropriate action under the existing laws had already been undertaken.

33. Having heard the learned counsel for the respective parties and having considered the materials on record. We are of the view that although ordinarily in a case like this a writ petition under Article 32 of the Constitution would be maintainable, in the facts of this case the writ petition does not call any interference by this Court. The various decisions cited by counsel on both sides indicate in what circumstances public interest litigation may be entertained by the Courts. We share the same views. We are also of the view that public interest litigation may be entertained when an issue of great public importance is involved, but not to settle private scores as was held in Dattaraj Nathuji Thaware’s case (supra). Furthermore, in an application under Article 32 of the Constitution there must be an element of infraction of one or the other fundamental rights contained in Part III of the Constitution. Although, the writ petition has attempted to show that the writ petition had been filed for the benefit of the people of the States of Gujarat, Madhya Pradesh and Rajasthan, the facts as sought to be projected clearly indicate that the writ petition has been filed out of grudge harboured by Shri Saxena against Smt. Medha Patkar. Except for vague allegations regarding receipt of foreign funds by the respondent Nos. 4, 5 and 6 and their alleged use for subversive activities, none of the allegations have any evidentiary value as they are unsupported by any evidence as such. There is no material on record to show that foreign funds have, in fact, been received by the respondent No.5 or that the same had been misutilized for subversive activities of an anti-national character. On the other hand, there is evidence to show that certain monetary awards had been received jointly by the respondent No. 5 and Baba Amte which had been vested in a trust which had no connection with the activities of the respondent No. 5. In fact, the writ petition appears to have been filed as a fishing exercise to try and procure evidence against the said respondent Nos. 4, 5 and 6. Having seen the annexures to the counter affidavit filed on behalf of the respondent No. 5, we are inclined to accept Ms. Indira Jaising’s submissions that Shri Saxena had a private grudge against Smt. Medha Patkar file the writ petition and not in the public interest as claimed by him.

34. The respondent No.6 has been introduced in the writ petition to malign the respondent Nos. 4 and 5 by making allegations of subversive activities against the respondent no. 6 and trying to establish a link between the respondent No. 6 and Smt. Medha Patkar to her discredit. There is no direct evidence of any kind of subversive activity allegedly engaged in by the Narmada Bachao Andolan which could be said to be anti-national. On the other hand, the respondent No.5 appears to be genuinely concerned with the rehabilitation of the tribals and the other habitats of the submerged areas in keeping with the decision of this Court that the rehabilitation programme should be completed before submergence of the areas which were inhabited by them.

35. Although, the writ petition has been shown to have been filed to protect the interest of the people of the three States of Gujarat, Madhya Pradesh and Rajasthan, except for Shri Saxena representing the writ petitioner association, there is no other individual who has been impleaded as petitioner to support such an argument. Although, the writ petition is alleged to be in the nature of a public interest litigation, the same appears to be a ‘private interest litigation’ to discredit and diffuse the agitation undertaken by the respondent No. 5 for rehabilitation of the displaced persons from the dam site before submergence of their habitat.

36. In our view, the materials in the writ petition consist only of vague allegations without any proper foundation. No case has therefore been made for a direction to the CBI to investigate into the said allegations.

37. Having regard to the view taken by us we do not intend to separately deal with the decisions cited on behalf of the respective parties.

38. The writ petition is accordingly dismissed with costs assessed at Rs. 5,000/-.

……………………..J(C.K.Thakker)
………………………J(Altamas Kabir)

New Delhi
July 10, 2007