CHAPTER I

INTRODUCTION & RESEARCH METHODOLOGY

1.1 INTRODUCTION
The earliest reference made to the concept of the Doctrine of Separation of Powers was in the
16th & 17th centuries by Aristotle & Plato. In the 16th & 17th centuries French philosopher
John Bodin and British politician Locke expressed their views regarding the doctrine.
But it was Montesquieu, the French jurist, who conceived this principle through his book,
Espirit des Lois Sprit of Law that was published in 1748.1
He found that concentration of powers in one person or group of persons resulted in tyranny.
To avoid this situation and with a view to checking the arbitrariness of the government he
suggested that power of governance should be clearly divided between the three organs of the
state i.e. Executive, Legislative and the Judiciary2. Therefore, the doctrine of the Separation
of Powers divides the institution of government into three branches: the Legislative, the
Executive and the Judiciary. Where the Legislative frames the laws, the Executive puts the
same into effect or operation and the Judiciary interprets the laws. The powers and functions
of each of these distinguished branches are separate and are carried out by separate personnel.
No single agency is able to exercise complete authority, the reason being, they are interdependent amongst them. Power thus divided should prevent absolutism (as in monarchies
and dictatorships; where all branches are concentrated in the hands of a single authority) or
corruption arising from the opportunities that unrestrained power offers. The doctrine can be
extended to enable the three agencies to act as checks and balance on each other. Each branch
being inter-dependent helps to keep the other from exceeding its authority, thus ensuring the
rule of law and protecting individual rights.
The principle can be stated as follows:
1. Each organ should e independent of the other.

1 Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law. Eastern
Book Company. Lucknow. 4th Edition (Reprinted). 2010
2 http://www.nirmauni.ac.in/law/ejournals/previous/article3-v1i2.pdf.; Last accessed on 10 th February,
2016
1

2. No one organ should perform functions that belong to the other3.

Montesquieu was impressed by the liberal thoughts as they existed in England in the 18th
century and witnessing the autocratic use of power by Louis XIV in his own country, he felt
that the secret of an Englishmans liberty was the separation and functional independence of
the three departments of the Government from one another4.
According to Montesquieu: Miserable indeed would be the case, were the same man or the
same body, whether of the nobles or of the people, to exercise those three powers, that of
enacting powers, that of executing the public resolutions and that of judging the crimes or
differences of individuals.
This theory had different implications in France, USA & England.
France: It resulted in the rejection of the power of the courts to review the acts of the
legislature or the executive. The existence of separate administrative courts to adjudicate
disputed between the citizen and the administration owes its origin to this theory.
USA: The principle was categorically adopted in the making of its Constitution. In USA,
executive power is vested in the President, legislative power in Congress and judicial power
in the Supreme Court and the courts subordinate thereto.5
England: In reality, the theory of Integration of Powers has been adopted in England. The
Lord Chancellor is the Head of the Judiciary, Chairman of the House of Lords, a member of
the Executive and often a member of the Cabinet6.
Though, this theory was appreciated by English and American jurists alike and was for the
first time codified in the American Constitution, yet it suffered from many flaws which has
made its strict & absolute application absolutely, a myth. The object, however of this
3 P. 39-40, Massey, I.P., Administrative Law, Eastern Book Company, 7 th Edition (2008)
4 Supra. Note 1
5 Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur. Haryana. 7th Edition.
(Fourth Reprint). 2009
6 Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative Law. Eastern
Book Company. Lucknow. 4th Edition (Reprinted). 2010
2

doctrine is reign of law in contrast to tyranny of power i.e. to avoid any concentration of
power in the hands of only one individual or a group of individuals or one organ.

1.2 RESEARCH METHODOLOGY

1.2.1 PROBLEM
This paper attempts to first look into the limitations that this doctrine undergoes and then
discuss the same through a series of case laws, with special emphasis on Ram Jawaya Kapur
v. State of Punjab7 . This is primarily because, although the Indian Constitution, as mentioned
by Mukherjea C.J., in this case has not recognized the doctrine of separation of powers in its
absolute rigidity, the functions of the different parts or branches of the Government have been
sufficiently differentiated. Therefore, the major problems which has been attempted to deal
with, through this project are:
What should be the relationship between the three
Whether there should be complete separation

organs of the State

of powers or there should be a

coordination among them

1.2.2 RATIONALE
As Lord John Dalberg- Acton stated that, Power corrupts and absolute power corrupts
absolutely8, the conferment of power in a single body leads to absolutism. However, it is
clear that doctrine of Separation of Power has not been accepted in India in its strict sense.
Since it is a Parliamentary form of government, therefore it is based upon intimate contact
and close co-ordination among the three wings. But still a tension between separation and
concentration of power will always exist. Therefore, the importance of the study is to
understand why and to what extent is the application of this doctrine practical in the Indian
Scenario of Parliamentary form of government.

1.2.3 AIMS AND OBJECTIVES

To study the history of the doctrine of separation of powers by analyzing relevant

Indian case laws.
T0 examine the impact of Ram Jawaya Kapurs9 case in regards to the application and
recognition of doctrine of separation of powers in Indian Legal System.

1.2.4 REVIEW OF THE LITERATURE

7 AIR 1955 SC 549
8 http://www.acton.org/research/lord-acton-quote-archive, Last accessed 10 th February, 2016
9 Ibid.
3

Appropriate knowledge of a particular aspect requires study of literature available on a

subject. The paper though has its base, as the Doctrine of Separation of Powers will revolve
around Ram Jawaya Kapur v. State of Punjab10 . An important way to get an insight into the
issue is to study the existing literature on the subject. Some research work has already been
done on the same. Certain works relating to the topic have been reviewed as under:

Dr. Pandey, J.N. Constitutional Law of India. Central Law Agency. Allahabad. 47th
Edition. 2010.
This book has made sporadic references to the case and has at places discussed it in
brief. The book does not cover every aspect but enables the researcher to understand

the basics.
Jain, M.P. Indian Constitutional Law. Lexis Nexis Butterworths Wadhwa Nagpur.
Haryana. 6th Edition (Reprinted). 2010.
This book has made only one reference to the Ram Jawaya case from the point of
view of the Doctrine of Separation of Powers. It has however, a distinct subsection
wherein it has discussed the concept in a unique manner. This book explains the topic

using a method different from the other books and gives a new insight to the topic
Justice, Thakker, C.K. (Takwani) & Mrs. Thakker, M.C. Lectures on Administrative
Law. Eastern Book Company. Lucknow. 4th Edition (Reprinted). 2010.
The Ram Jawaya case has been referred to in this book from the angle of the doctrine
of separation of powers and apart from this the entire concept has been discussed in
detail. This book offers an in-depth analysis of the subject along with leading cases.
The situation in UK, USA & France along with India has discussed with numerous

examples.
Sathe, S.P. Administrative Law. Lexis Nexis Butterworths Wadhwa Nagpur. Haryana.
7th Edition. (Fourth Reprint). 2009.
This book also has a sub-section devoted to the explanation of the Doctrine of
Separation of Powers. It discusses the concept in an elemental manner, also referring

the Ram Jawaya case. The book gives a basic insight into the subject.
www.manupatra.com
The text of the judgment in the Ram Jawaya case has been taken from this website,

which also makes available the other cases referred in the judgment.
www.indiankanoon.org
This website is also an important source for the Ram Jawaya case

1.2.6 NATURE OF STUDY

10 AIR 1955 SC 549
4

The nature of study of this particular project is doctrinal. This is because the research for the
study is based upon judicial decisions, legal principles, concepts and doctrines that have
already been laid down or recognized by the honorable courts. The method of data collection
is from books and other materials available in the library. Therefore, secondary sources of
data have been used for the research study of this project.

1.2.6 LIMITATION OF THE STUDY

This paper shall mainly deal with the general limitations and defects of the doctrine of
Separation of Powers. Further, the scope of the paper is limited to the Indian legal system and
only a passing reference (if any) has been made to foreign legal framework.

CHAPTER I

THE STRATEGIC ROLE OF DAMS FOR INDIAS SOCIAL

AND ECONOMIC DEVELOPMENT

India ranks fourth in the world after China, the United States and Russia in terms of the
number of its dams. There are more than 4,000 large dams, which play an important role in
the country. In India most dams are constructed and maintained by the water resource
departments of the state governments. Certain dams built on interstate rivers and providing
water-related services to more than one state are managed by separate institutions. In recent
years there has been a trend towards private-sector operation of hydropower dams. While
many large reservoirs in other parts of the world are specifically intended for water supply,
many in India were built primarily for irrigation purposes. But as many cities and towns are
running out of water, numerous dams originally built for irrigation are now supplying water
for domestic consumption11. The National Commission for Integrated Water Resources
Development set up by the Government of India in 1999 has forecast that the total water
requirement for domestic purposes in the country as a whole will rise from 43 BCM in 2010
to 62 BCM in 2025 and to 111 BCM in 2050, most of which will come from surface
sources12. According to Sengupta13, of the 4,291 dams in the country, 96 per cent will have
irrigation as either their sole objective or at least one of their objectives, and only 4.2 per cent
will have power generation as one of their objectives. While it is generally agreed that
agricultural production has increased over the years, the actual contribution made by damreservoir-based projects to that increase has always been a matter of debate, all the more so as
groundwater irrigation has grown in the country in the last three decades 14. Large dams also
assume strategic importance in Indias energy scenario. Large-scale hydropower is now a
preferred power generation technology because of its low recurring costs, its lower carbon
emissions compared to coal-based thermal power and its ability to supply peak power 15.
Realising the importance of hydropower for the national energy scenario, the Government of
India, in collaboration with the Central Electrical Authority, has initiated the preparation of
11 Shah, Z. / M. D. Kumar (2008): In the midst of the large dam controversy: Objectives, criteria for
assessing large water storages in the developing world, in: Water Resources Management 22 (12),
December 2008; Retrieved on 23rd January, 2016
12 NCIWRD (National Commission for Integrated Water Resource Development) (1999): Integrated
water resource development: A plan for action. Report of the National Commission for Integrated
Water Resource Development (NCIWRD) I
13 P.127, Sengupta, N. (2000): A brief review, in: R. Rangachari et al. (2000): Large dams: Indias
experience, a WCD case study prepared for World Commission of Dams, Cape Town, South Africa
14 Ibid.
6

preliminary feasibility studies for 162 new hydroelectric schemes totalling over 50,000 MW.3
At national level, the total hydropower potential is 148 GW, of which only 31 per cent has
already been developed or is under construction. Arunachal Pradesh in the North-East of the
country is to have the highest hydropower potential. Such states as Arunachal Pradesh and
Sikkim in the North-East and Himachal Pradesh and Uttaranchal in the North are
experiencing rapid development in the hydropower sector. The state governments have
identified hydropower as an avenue for revenue generation.4 Numerous international
agencies, such as the Asian Development Bank, the World Bank and the International Finance
Corporation, have either conducted feasibility studies

of the possibility of harnessing

hydropower in the country or have funded various governmental and private power
development firms and parastatals.

15 TERI (The Energy and Resources Institute) (2006): National energy map of India: Technology
vision 2030, The Energy and Resources Institute and Office of the Principal Scientific Advisor
Government of India, New Delhi, India
7

CHAPTER II

THE EXPERIENCE OF DISPLACEMENT AND BIG DAMS

IN INDIA
It is attempted to observe how 50 years of planned development in India have entailed largescale forced evictions of vulnerable populations, without the countervailing presence of
policies to assist them to rebuild their lives. Most of the negative aspects of displacement,
such as lack of information, failure to prepare in advance a comprehensive plan for
rehabilitation, the undervaluation of compensation and its payment in cash, failure to restore
lost assets or livelihoods, traumatic and delayed relocation, problems at relocation sites,
multiple displacement, and neglect of the special vulnerabilities of the most disadvantaged
groups are in fact the direct result of state policy. Prior to 1947, water resource development
works in India comprised mostly of diversion weirs or small earth dams not exceeding 15 to
20 metres in height, mainly in the form of small tanks and bunds with localised networks of
canals. In fact there were only 30 dams that were 30 metres or more in height before the onset
of Independence. However, many of these systems involved extensive and sophisticated
modes of water harvesting, sometimes with massive canal systems, and involving creative
application of indigenous technologies. With the adoption of policies for planned
development after freedom in India, a major priority for policy-makers was the harnessing of
the countrys water resources for irrigation and power. Support to earlier technologies ,based
on diversion or run-of-the-river schemes, gradually diminished in favour of large dams. The
visibility, scale and sweep of mega-dams made them potent emblems of the reconstruction
and regeneration of the battered economies of long-suppressed post-colonial nations. Large
storage works such as the Bhakra, the Hirakud, the Tungabhadra and the Damodar Valley
Dams were amongst the earliest projects undertaken in the post-Independence period in the
country. Construction of high dams for hydropower generation was also taken up, especially
in peninsular India, and this included schemes such as the Machkund, Pykara and the Kundah
hydro-electric projects. The national plans also attempted to incorporate wherever possible a
multi-purpose orientation to dam projects, including hydro-power, flood control and
navigation, in addition to irrigation. Some 3,300 big dams have been constructed in India in
the last 50 years. Budget provisions for major irrigation projects outstrip most other sectors,
including health and education, in the annual plans of many state governments. These are also

far in excess of financial allocations for establishing or strengthening decentralised irrigation

schemes.
Therefore, some of the recurring and predominant trends in the experience of displacement
and rehabilitation as a result of big dams in India are16:i
ii
iii
iv
v
vi
vii
viii
ix
x

Failure to be consulted and informed

Absence of Advance and Comprehensive Planning for Rehabilitation
Undervaluation of Compensation
Inability to handle cash compensation
Failure to acquire alternate cultivable lands
Traumatic forced and delayed relocation
Problems at Resettlement Sites
Multiple Displacement
Failure to provide alternative livelihoods
Special vulnerabilities ( especially by caste, class, gender or age)

CHAPTER III

OPPOSITION TO BIG DAMS: POLICY ISSUES

16 DMonte, D. (1986): A dam too far, in: Economic and Political Weekly 19 (47), 24 November
1986
9

By recounting the history of resistance to big dams in India, some of the major issues in the
opposition to big dams related specifically to displacement is to be examined, in order to
derive lessons for policy. Opponents of big dams have challenged the model of development
of which big dams are both a symbol and an integral component. They have 5 Quoted in Roy
1999 World Commission on Dams, Displacement, Resettlement, Rehabilitation, Reparation
and Development. This is a working paper of the World Commission on Dams. The report
herein was prepared for the Commission as part of its information gathering activity. The
views, conclusion, and recommendations are not intended to represent the views of the
Commission questioned the assumption that development necessarily entails displacement 17,
and that decisions regarding displacement are essentially technical or managerial in nature.
Instead they have affirmed the fundamentally political content of such decisions. Challenging
the eminent domain of the state and its unfettered right to acquire private and community
lands without consent, they seek to enforce upon state and project authorities a recognition of
their central responsibility for just, humane, comprehensive and developmental rehabilitation
so that those who are displaced and their offspring become not only sustainably better-off, but
in fact become direct project beneficiaries18.

A Inevitability and Technical Neutrality of Displacement

The opponents to big dams in India have also challenged the dominant orthodoxy that
development, especially state-induced development, by necessity entails the human costs of
displacement or involuntary resettlement.
B The Responsibility of the State for Successful Rehabilitation
The next issue in the debate is the nature and extent of state responsibility for the
rehabilitation of the displaced. The state in India has been reluctant to admit responsibility
beyond the payment of compensation as determined by law. It is significant that whereas the
statute books arm the state with what many perceive to be draconian powers of compulsory
land acquisition, there is still no national law not even a national policy for ensuring
that rehabilitation is an enforceable right of persons affected. The preferred way has been
instead to allow the concerned state governments and funding institutions to work out policies
specific to each project.

17 Fernandes,Walter , S.C. Das and Sam Rao (1989) `Displacement and Rehabilitation : An Estimate
of Extent and Prospects in Development and Rehabilitation, Indian Social Institute
18 Dreze, Jean (1994) `Resettlement of Narmada Oustees. The Economic Times, 22 February.
10

CHAPTER IV

DISPLACEMENT AND REHABILITATION: POLICY

PRESCRIPTION
It is not enough to speak of a policy for resettlement and rehabilitation. There must be a
comprehensive policy on displacement and rehabilitation, of which the cornerstone must be a
commitment to avoid or minimise displacement. For this, `public purpose and official claims
that less displacing alternatives are not available must be justiciable, a regime of transparency
and right to information must be in place and human and social costs must be genuinely
incorporated in assessing the benefit-cost ratio of any project.

There is a need for the attempt to establish benchmarks for a just and humane policy for
compensation, resettlement, and rehabilitation, in cases where displacement occurs. The goal
of such policy must be to facilitate affected populations to directly and sustainably benefit
from the projec19t. Such a rehabilitation package must be negotiated with affected populations
to constitute a legally enforceable right. Detailed planning for rehabilitation must be
integrated into project planning, and phasing must be tailored to the interest of the oustees
rather than construction schedules. Populations whether affected directly or indirectly must
be eligible and compensation must enable replacement of lost livelihoods, shelter and assets.
Land-for-land must be the cornerstone of the rehabilitation policy, based on compulsory
acquisition from larger holdings in the command area. Important non-land based assistance
could include exclusive fishing rights in the new reservoir. Physical relocation, where
unvoidable, must be in resettled communities at sites and habitats selected by the resettlers
with the consent of host communities, and basic facilities must be assured in advance.
Justiciability of public purpose
The only `public purpose that should be recognised by the law should be a purpose that has a
clear and direct linkage to promoting the objectives enshrined in the Directive Principles of
State Policy of the Indian Constitution, and should exclude any activity which related to the
19 Fernandes,Walter , S.C. Das and Sam Rao (1989) `Displacement and Rehabilitation : An Estimate
of Extent and Prospects in Development and Rehabilitation, Indian Social Institute
11

creation of profit. It must be incumbent upon government to justify the public purpose of the
proposed project, by publishing for public dissemination, the following information:20

How far does it lead to the optimum utilisation of existing resources, keeping in mind
the priority needs of the common people, especially the disadvantaged and dependent
sections?

How does it alter the existing distribution, use, access and control over the natural
resources in question? In whose favour and in accordance with what principles of
equity and distributive justice, and at whose costs, is such a change made? In other
words, who are the beneficiaries and who are the victims of the development project?

What is the total impact of the project upon life, society and the ecosystems within
which these survive.

It should be legally permissible for not only persons to be affected by the project, but also any
other person or group, to challenge this claim of `public purpose of the project. This would
be in conformity with the principle established in the context of public interest litigation in
India, that in issues involving concerns of social justice one does not need to establish that
one is directly affected to have recourse to legal remedies.

Establishing that this is the `least-displacing alternative

It is also incumbent upon the government before the launching of the project to justify that in
the light of various technical and locational options, this is the least displacing alternative
available. This claim should also be justiciable. For example, small reductions in height of a
large dam may dramatically reduce21 displacement, with a proportionately much smaller fall
in benefits. But going much further, maybe a network of small and micro-minor division
schemes and earthen bunds, within a overall paradigm of integrated watershed development,
20 Fernandes, Walter (1995) `Tribal Displacement:: Struggles and Implications for Resettlement.
Lokayan Bulletin, 11:4
21 Dreze, Jean (1994) `Resettlement of Narmada Oustees. The Economic Times, 22 February.
12

may result in far less displacement and a far more equitable sharing of benefits by small
farmers engaged in dryland agriculture.

Right to information
It is imperative that the population likely to be affected by the acquisition be involved in the
process from the time that22 decisions are sought to be made about where a project is to be
located. They should be given full information;

To help them participate in decisions about whether the stated purpose is a public
purpose;

To explore options which may be less displacing;

To work out the costs it involves for them;

To find out how they may gain from the process of change that the acquisition will
bring

Right to be consulted
Apart from the right to information of the individual, is the right of affected populations to be
actively consulted in the event of any proposed land acquisition. As the NRR 1998 states It
must be a compulsory obligation on the part of the project planning and implementation
authorities to involve and consult the representatives of the affected communities, including
women and members of disadvantaged groups, in all phases of planning, execution and
monitoring of the RR (resettlement and rehabilitation) Plan23. The entire decision making
process regarding RR Plans must be completely transparent.

22 Areeparampil, Mathew (1987) `The Impact of Subarnarekha Multipurpose Project on the

Indigenous People of Singhbhum in PRIA (ed.)
23 Dreze, Jean (1994) `Resettlement of Narmada Oustees. The Economic Times, 22 February.
13

Social Cost-Benefit Analysis

Another institutional mechanism to limit displacement is to ensure that in the planning of any
project the social and human costs are more accurately assessed and internalised in the costbenefit analysis of the project. In practice, project engineers and administrators tend to
exaggerate greatly the expected benefits of any project, whereas social and human social
costs are severely downsized or ignored. Part of the reason why displacement costs were
never fully accounted for was that , except for land acquisition outlays they were in fact pure
externalities under the LAA24. In recent years however recognition of the principle that social
costs should be fully internalised while assessing projects has begun to appear in government
or Bank policy documents.

Special measures to protect most vulnerable groups

We have observed that persons and groups disadvantaged by social origin, class, caste,
gender or age, are especially vulnerable to the rigours of forced resettlement, and any plan for
developmental rehabilitation must contain strong social security measures for their
protection. Apart from land, tribal people are particularly dependent on forests for their
livelihood and their resettlement must as far as possible be in a similar habitat. Their
traditional rights on minor forest produce and common property resources at the new place of
settlement must be secured, as also, if access is possible, to their original habitat 25. In
exceptional circumstances if it is not possible to relocate tribals near forests, project
authorities should be required to implement a food-for-work guarantee public works
programme for a minimum period of 10 years during the non-agricultural season.
Assistance in relocation
It is important for project authorities to recognise that the trauma of uprootment from ones
home and habitat is enormous, even more so for rural and tribal communities, and that in
financial terms it is impossible to compensate oustees for this pain and loss. Therefore,
24 Fernandes,Walter , S.C. Das and Sam Rao (1989) `Displacement and Rehabilitation : An Estimate
of Extent and Prospects in Development and Rehabilitation, Indian Social Institute
25 (1992) The Debate on Large Dams. Bharat Dogra, New Delhi
14

locational decisions must place special stress in avoiding displacement of habitats, and
whenever such displacement occurs, it should be handled with sensitivity in such a way as to
minimise the trauma.
It should not be legally permissible to shift resettlers to a new location to which they have not
consented. This means that alternative options must be discussed in open Gram Sabha
meetings of affected populations, and the oustees or their representatives assisted in visiting
possible alternate sites26. Care must be taken especially to ensure proximity and access to
their new planned livelihood base, and that the new habitat is environmentally and culturally
as similar to that which is being lost. Also that community and kinship bonds are recognised,
and communities are not fragmented during relocation.

CONCLUSION:
Decision-making on dams in India involves multiple actors at various stages, each with his
specific functions and responsibilities. Thus it is more akin to a polycentric decision- making
setting where the authorities at the respective levels are endowed with certain powers. The
role of public participation is formally limited in the overall decision-making but, because the
process is long and involves many actors at various levels, the general public and civil society
organisations are allowed to approach and try to influence them. In recent years civil society
organisations have influenced decision-making by directly accessing the governmental or
government-empowered committees. If violations or complaints are not noted and addressed
by the administrative or regulatory system, the people have approached the judiciary and filed
lawsuits. Historically, the role of public participation in the decision-making process has been
limited, that process consisting solely of interaction between government departments. This
has changed little over the years. What change there has been has occurred in the
environmental sphere, where the only organised form of public participation, the public
26 Areeparampil, Mathew (1987) `The Impact of Subarnarekha Multipurpose Project on the
Indigenous People of Singhbhum in PRIA (ed.)
15

hearing, is to be found. This paper has shown that the public hearing is the only sounding
board for public opinion on dam projects. It thus becomes one of the most contested and
controversial arenas. As has been evident over the years from the EIA notifications, the public
hearing has been one of the more important areas for reforms. To perform as a scientific tool
which correctly anticipates future environmental impacts and suggests mitigation measures,
EIA is based on a number of assumptions. The first is that EIA accurately defines a socioenvironmental baseline situation, the second that it correctly identifies impacts and does not
underestimate them, the third that it suggests suitable mitigation measures and the last that the
mitigation measures are fully implemented. If all these assumptions are to be fulfilled, those
involved in the EIA process must focus on nut-and-bolt issues. Analysis of the EIA
Notification and the point of contention in the various cases studied show that there are
structural constraints both in the notification and in its actual implementation. Inadequate
baseline information and associated impacts at one level has been the main point of
contention in the various projects. There have also been persistent allegations of failure to
comply with the environmental management plans. In the notification the monitoring of
compliance and the sanctioning of violations are the most weakly addressed. While the 1994
EIA Notification was strong in its insistence on sanctions, there were persistent allegations
that the quality of environmental reports was poor (Menon / Kohli 2009). This showed that a
strongly worded text is not necessarily translated into practical results. Instead of addressing
this issue, the 2006 EIA Notification relaxed the sanctions. Most of the structural constraints
in the EIA Notification are not addressed because EIA is often perceived as an administrative
hurdle rather than a scientific tool. The lacunas in the environmental clearance process have
often triggered controversies and arguments against dam projects in recent years. The
vehement opposition to the projects in the form of criticism of the EIA reports or the EIA
process frequently results in ad hoc decision-making at project level. This may strengthen the
environmental standards that are then followed in the project concerned, but the structural
constraints to proper identification of impacts, mitigation and proper monitoring of the
mitigation remain unresolved. In these circumstances it is not therefore surprising that,
although the Government of India and the Ministry of Water Resources rejected the report
outright; sections of civil society would continue and still continue to espouse it. Indian civil
society was also proactive in standing by its views throughout the WCD process, while the
governments attitude was not enthusiastic (Iyer 2003). The process of discursive dominance
by the Indian civil society was also accelerated by the presence of Indias civil society leaders

16

as a WCD Commissioner and the fact that she was one of the important people in the old civil
society movement.
Analysis of the content of the government policies drafted by various ministries and
government agencies over the years reveals a gradual progression in that the resettlement
package or resettlement planning per se becomes more inclusive, whereas attitudes remain
highly exclusive when it comes to discussing a strategic issue, such as gaining public
acceptance or comprehensive option assessment, relating to the selection of a dam from
among various options

References:Bibliography
-

Baxi, Upendra (1989), Constitutional and Legal Aspects of Displacement and

Rehabilitation in Enakshi Thukral and Walter Fernandes ed. Development,
Displacement and Rehabilitation, ISI, New Delhi.
Narmada Bachao Andolan, The River and the Life, NBA, Baroda, 1998.
Paranjpye, Vijay and Fernandes, Walter, Rehabilitation Policy and Law in India; a
Right to Livelihood, ISI and Econet, 1997, New Delhi.
Ramanathan, Usha, Displacement and Law, Economic and Political Weekly, June
15th, 1996.
Sangvai, Sanjay, The Anti-Dam Peoples Movements in India in The Ecologist Asia,
Vol. 5&6
Areeparampil, Mathew (1987) `The Impact of Subarnarekha Multipurpose Project on
the Indigenous People of Singhbhum in PRIA (ed.)

Research Papers

17

P.24, Dubash, N. K. et al. (2001): A watershed in global governance? An independent

assessment of World Commission of Dams, Washington, DC: World Resources
Institute. [Retrieved on 29th January 2016]
GoI (Government of India) / Ministry of Water Resources (s. a.): Letter
2/WCD/2001/DT (PR) III (2). [Retrieved on 29th January 2016].
Shah, Z. / M. D. Kumar (2008): In the midst of the large dam controversy:
Objectives, criteria for assessing large water storages in the developing world, in:
Water Resources Management 22 (12), December 2008; Retrieved on 23 rd January,
2016
NCIWRD (National Commission for Integrated Water Resource Development)
(1999): Integrated water resource development: A plan for action. Report of the
National Commission for Integrated Water Resource Development (NCIWRD) I
P.127, Sengupta, N. (2000): A brief review, in: R. Rangachari et al. (2000): Large
dams: Indias experience, a WCD case study prepared for World Commission of
Dams, Cape Town, South Africa

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