An examination of the exclusionary politics of of law and language in the Narmada case by Clifton Rozario
– clifton d’ rozario
Luharia Shankaria is probably one of the most articulate and even well informed people I have met in the Narmada valley. Living in a village called Jalsindhi in the forests of the Vindhyas right on the banks of the river Narmada, he can articulate the struggle and rights of adivasis, provide a grounded critique of large dams, reel of names of herbs, where it can be found, and what ailment its portion would cure and how, besides, with the same ease, sing the ‘gayana’, the song of creation and evolution that has been passed down orally from generation to generation of Bhilalas.
However, like thousands of other adivasis in the Narmada Valley, Luharia has been in the midst of a serious crisis for some time now. He is a pronounced PAP i.e. project affected person. Since 1994 his fields were submerged every year during the monsoon by the rising waters of the Sardar Sarovar reservoir. Post 2000 the increasing level of the reservoir every year has permanently inundated his house and most of his fertile flat land. Though this project has been hailed for its model rehabilitation policy by policy makers and the Supreme Court of India, Luharia still awaits rehabilitation in his village Jalsindhi.
But this is not the full story of Luharia. From the early 1980’s, like other adivasis in that region, he was part of organizations that have tried to articulate the rights of adivasis Initially it was the Khedat Mazdoor Chetna Sangath that organized adivasis to demand access to forest resources denied to them, protest against and prevent exploitation of adivasis by the Forest Department. Thereafter the Sardar Sarovar project emerged from the dusty papers of developmental projects and suddenly there was another adversary. Adivasis like him and other farmers from the plains upstream organized themselves under the banner of the Narmada Bachao Andolan (NBA) to raise fundamental questions about the efficacy of large dams, rights of project affected people, rehabilitation policy of the State, etc. What were also raised were the natural rights of adivasis to their ancestral lands and the cultural loss that the dam induced displacement would cause.
After years of dharnas, deliberations with the State, satyagrahas, the NBA, in a move to augment its other strategies decided to approach, the Supreme Court the ultimate, officially atleast, arbitrator of justice in the country. To this end NBA approached the Court with the Writ Petition No. 319 of 1994 filed in May 1994. The Court stayed the construction of the dam for almost 5 years. The matter was finally disposed off on 18th October, 2000, with the construction of the dam being permitted subject to fulfillment rehabilitation pre-conditions, among others. Despite this, or, in the minds of people like Luharia, due to the judgment, he still awaits rehabilitation. Still hoping for the Supreme Court to provide justice, NBA filed another petition in 2002, Writ Petition No. 328 of 2002 in which the court passed an order stating that every individual oustee was free to approach the court with their grievance after they had exhausted the other official avenues. Still Luharia awaits rehabilitation.
This article does not seek to make a critique of the efficacy of the Sardar Sarovar dam nor is it in any way an attempt to valorize the NBA. There has been so much written on these fronts that, at this point in time, one would seriously have little to contribute. In fact, this article does not even aim to critique the Court for what it did not do for people like Luharia despite a seething rage at the antics of this so-called Court of Justice. Indeed much has been written on this front as well. Instead, this article seeks to focus on the fact that the court in particular and the legal discourse in general did not think it necessary to hear him out, or rather let him speak. And yet found itself capable to talk about him.
the court in particular and the legal discourse in general did not think it necessary to hear him out, or rather let him speak. And yet found itself capable to talk about him
…humru othro e kohnu se!!!
Difficult task that it already is, in addition to running the real risk of reducing the grave import of more than two decades of organized resistance, let me try and provide an account of what an articulation of rights and entitlements by Luharia. More often than not this inevitability would begin with them being the original inhabitants of forests and the nature of relationship shared between adivasis, land, forest and water from time immemorial, the struggles against the British for control of the forests, stories of Khajya, Chitu, Bhima Naik and others that are historically recorded and a case of local legendary lore. Further, the fact that Independence has not meant much to them since the troubles they face are the same, the only presence of the State being in the repressive and exploitative form of the forest department, lack of any development (no schools, roads, health service, public distribution system or any such social welfare scheme), then moving on to the need felt for organizing themselves, dharnas, sathyagrahas, attempts to get themselves rehabilitated, attempts to stop the dam construction, increased apathy of the state, arrests, lathi charges, unfulfilled promises of rehabilitation, police firings, continued mobilization and the ongoing struggle.
Such articulations (and their songs) provide a fascinating account on the invocation of their history even in understanding their concept of rights in the present context.
There appears to be a curious mix of both the traditional and the modern in the sense that the understanding of entitlements stems from both, customary rights, and citizenry rights synonymous with the modern Indian State. The entry of the dam on the scene brought with it another source of legal rights in the form on entitlements flowing from the rehabilitation policy. However, the centrality of the traditional rights around which the rights from the others accrue is clearly maintained. In this context, the gayana can be seen to be the epitome of these traditional rights, passing from generation to generation reminding them constantly of their history and in a way defining their future simultaneously.
There is a definite method of approaching the Courts. There is the intermediate in the form of the lawyer and the arbitrator in the form of the judge. In the case of NBA, it was decided that public interest litigation would be filed before the supreme court hence the location was the supreme court and since one of “your lordships” on the bench was the chief justice court no.1 it was. What is to be said to the court must be “respectfully showeth” only in a particular format in English substantiating these “submissions” “before your lordships” by referring to the Constitution, various parliamentary laws, rehabilitation policy, international covenants and precedent judgments. The relief that are “respectfully sought” from “this Hon’ble Court” are in the form of “prayers” which the court “may be pleased to” sanction. There are also dress codes not only for the active participants in this floor show, but apparently, there is one even for those attending court proceedings (more about that later). For the advocates black gowns with different forms of capes to distinguish the senior counsels from the junior advocates are a must.
This is a far cry from the systems of dispute resolution that have evolved in these communities. These systems and processes are geared to deal with disputes revolving around various issues, which to use common legal parlance are civil, criminal and torts. The “panch” or group of dais (wise old men), closest parallel being the jury, sits to arbitrate over these matters and resolve them. However, disputes were settled through a complex web of negotiation and argumentation and the sitting on a single dispute went on till some form of a resolution was reached. There is a general consensus about the maintenance of decorum in these proceedings and the inevitability of acceptance of the decision of the ‘panch’. However, the practice of approaching the police station to file complainants is also present though people are vary of this still since the police use this as an opportunity to extract money from both sides.
There has been no shift away from the prescribed form and content in the writ petitions filed by the NBA. There was a definite attempt to produce a document that best captures the spirit and ideology of the movement within the restrictive framework of constitutional law. Needless to add it was in English and top notch senior advocates of the supreme court fought the case on behalf of NBA. It is my belief that this is not a comment on NBA rather it is more so on the rigidity of the legal discourse and legal institutions it chose to approach. It is also a comment on the fact that in a democratic set-up the belief in the judiciary to deliver justice when all other avenues fail is pervasive.
The process that was followed could be summed up as follows. Senior activists of the NBA with the necessary knowledge of English, writing skills and ability to interpret the law produced the writ petition. This was after intense discussions on what should go into the petition were held in which activists and village representatives participated. This was then approved by the advocates for NBA following which it was filed. The respondents, in this case the Union of India, State governments of Maharashtra, Madhya Pradesh, Gujarat and Rajastan and the authorities placed with the responsibility of completing the project and rehabilitating the project affected people, then filed their responses to the writ. The Petitioners i.e. NBA then responded to these through affidavits and counter affidavits. Thus the cycle of affidavits, counter affidavits and written submissions was set in motion. During hearings the advocates chose what parts of the legal documents need to be read out to the “lordships” deciding that these need to be emphasized and assuming that the “lordships” read the rest.
Within this process, the appropriation of the voice has easily operated at multiple levels to ensure the effective silencing of the person, from Luharia to the person who represented the case in the letter of the court documents to what the advocates accepted as valid arguments and then, finally, to what the judges chose to listen to. So the activists wrote the legal documents, more often than not, raising crucial issues about the efficacy of the dam, environmental impacts and rehabilitation, but also responding to the respondents’ legal documents. So the “lordships” of the supreme court heard the arguments of the senior advocates appearing on behalf of people like Luharia and read “writ petitions”, “affidavits” and “written submission” written by the NBA activists.
The silencing is made effective not just from the method but also from the language and form that was used. This was not the ‘panch’ that he was used to where he could argue his own case in his own language while articulating his rights using a framework familiar to him. These are but few of the critical modes through which law constitutes its own authority in the most indiscriminate fashion. The linkage between language and power emerges as one of these with language operating on behalf of power. The use or the denial of use of a particular language has resulted in the effective silencing of people like Luharia reinforcing hierarchy and subjecting him to the sidelines as a mere spectator.
There are so many other stories that were needed to be told and needed to be heard by the court for it to begin to understand why the adivasis did not want to leave their lands. One such is that the word Jalsindhi actually means a “well of water” and that the Narmada on its journey to the Arabian Sea from Amarkant had night halts at villages where she listened to what its people had to say. However to enable herself to stay stagnant she flowed into the earth creating a well and that Jalsindhi was one such village, which is why the relationship with his village and the Narmada are sacred and central to his existence. Another of course relating to sacred spots in that particular region that are central to the spiritual beliefs of the adivasis and whose relevance lies precisely in their location. For instance, the mountain of Rani Kajal is the most important goddess of the Bhilalas.
There is a sacredness of the immediate geography that interweaves their past with the present and the future, their spirituality and everyday life with their politics. And this is best communicated by the adivasi song of resistance that goes: “Rani Kajala suroo amu inu kaha beeje humu juwanya / e to hamari paala kootri inu kaha beeje humu juwanya / baaji kaye mota hoya inu kaha beeje humu juwanya”. (We are the children of Rani Kajal, why must we fear these people (police, governments, etc.) / they are the dogs that we look after why must we fear these people / we have eaten our vegetables why must we fear these people. The last line basically means that we live of our own efforts so why must we fear these people.)
It was these and more that were denied entry into the official legal discourse. The denial was at the level of representation on the official documents i.e. petition, written submissions and affidavits and at the level of oral representation before the judges. It is in this way that people like Luharia, apparently not good enough to be heard, have been denied opportunity to speak.
However, the denial was not just of voice but of presence too. The sheer physical distance between the adivasis areas and the insurmountable economic implications of the journey and stay at Delhi were one of the factors that regulated the presence of adivasis at the hearings of their petition. The adivasis in question here are not generally known to be big travelers. In fact prior NBA and its dharnas in political centres like Bhopal, Bombay and Delhi, people like Luharia found no reason to travel to these places. However, the censorship of presence did not just operate at this level. In one instance certain adivasis were told to take off their pagadis and then enter the court hall since it would be disrespectful to the “lordships”. Apparently the only head wear allowed into the supreme court rooms are Gandhi topis and Sikh turbans. After much heated discussion the adivasis were led off to the room of the Security Head who finally relented to them wearing their turbans in court after he was convinced by the argument of the adivasis that their pagadi was as integral to them as a Gandhi topi would be to a gandhian and a turban would be to a sikh.
The hurdles did not end there. Once inside the “silencing of the person” was most evident. Immediately the people are transformed into vague spectators without the necessary capabilities to comprehend what was going on. To NBA’s credit, it ensured that in all hearings there were people like Luharia present with the activists or supporters constantly translating the proceedings of the court into a more understandable language. However, this was all it was. A drama unfolding before him, the repercussions of which he is aware of, yet not having much of a part in it. Ranya dai, one of the senior adivasi activists from a village called Mukhadi in Maharashtra, once remarked on this and was appalled that the “lordships” chose to listen to “men in black coats” instead of himself considering that he could narrate his woes best.
Though “your lordships” did not care to listen to people like Luharia that did not stop them from providing a description of who adivasis are and then deciding on what’s best for them!
To quote from the judgment: “The majority of the project affected families are involved in rain-fed agricultural activities for their own sustenance. There is partial employment in forestry sector. Since the area is hilly with difficult terrain, they are wholly dependent on vagaries of monsoon and normally only a single crop is raised by them”
Contrast this with one of the verses of the gayana: “Now God had a garden with all kinds of plants in it. Part of his garden was for us humans – this was the garden of jowar. Then god gave breasts to the Jowar. Men fed from the breasts and blood flowed into their veins. That is why if we do not eat jowar our blood dries up. For livestock there was a garden of jinjvi grass and God gave it breasts livestock also came to have blood.” Clearly the relationship shared with land, food produce, livestock and fodder is more than just a functional one and can be located within the realm of spirituality. The spiritual beliefs of the adivasis are such that there are gods and goddesses for trees, grass, mountains, tigers, etc that in a concrete sense provides for an opportunity to understand the relationship shared with nature and to understand their relationship to land one would first have to comprehend this. It is important at this point to factor in the societal changes that have taken place in these adivasi communities affecting the once-may-have-been symbiotic relationship that has taken on a different avatar today with some remnants of the philosophy of the gayana. The courts however were not interested in this and this is symptomatic of the inability of legal discourse to accommodate any other world view than what it held, yet the skewed power relations at work enable it to dismiss these conceptualizations. As a friend pointed out, this ability to comprehend world view is possible only when there is an admission of the existence of possible interlocutors, or that there are concepts which are common to the two world views. However, in this instance the judges’ articulation smacks of an arrogance of belief in one world view that refuses to allow for any possibility of legitimacy to the other world view.
The court goes on to add that, hence, their displacement was actually to the benefit of these illiterate adivasis since they would be rehabilitated to new locations where they would most definitely be better off than what they were since at these new locations they will have more and better amenities than which they enjoyed in their tribal hamlets considering that “…the tribals who are affected are in indigent circumstances and who have been deprived of modern fruits of development such as tap water, education, road, electricity, convenient medical facilities, etc..” This, the court believes would lead to their “gradual assimilation in the mainstream of the society” and “will lead to (their) betterment and progress“
The court did however note that “displacement of these people would undoubtedly disconnect them from their past, culture, custom and traditions” but added that this becomes necessary for the greater common good. The court most emphatically states that “a nature river is not only meant for the people close by but it should be for the benefit of those who can make use of it, being away from it or near by.” Further, “realizing the fact that displacement of these people would disconnect them from their past, culture, custom and traditions, the moment any village is earmarked for take over for dam or any other developmental activity, the project implementing authorities have to implement R&R programmes.” Compare this with the concept of culture and custom articulated above and what clearly emerges are the obvious differences in perceptions of ownership, use, property, spirituality and rootedness, indicating the different worlds that the two habitate.
The most audacious part of the judgment however is this. To quote: “It is not fair that tribals and the people in un-developed villages should continue in the same condition without ever enjoying the fruits of science and technology for better health and have a higher quality of life style. Should they not be encouraged to seek greener pastures elsewhere, if they can have access to it…”. What people like Luharia want is development but not by displacement. In fact the struggles that he has embarked on from the beginning were for, among other issues such as control over forests, etc, schools, roads, health services and other such fruits of development that was denied to him. Probably the lordships should have heard him first before taking a call on what’s best for him.
The audacity and arrogance of the courts and the legal discourse in general gives one the impression that this is not a way of keeping people out which would appear brutal, but rather a way of deciding who has something worthwhile to offer and who is qualified enough to speak, a rather sophisticated exclusionary process.
It is my belief that one can clearly understand the legal discourse as moderated by the supreme court as such, to be one that does not provide for a site for the self-articulation of their natural rights by the Narmada adivasis, using their language and understanding of entitlements and justice. Further, this legal discourse is not just marked by denial of a cultural knowledge but also by pompous bias and discrimination of the adivasis stemming from the power that the major players in this discourse have.
As pointed earlier the silencing of the subject operates at multiple levels. From the physical, social and ideological impenetrability of the deep-set structure of the legal system and it’s functioning to the regulation of who are privileged to negotiate within this maze. From the vulgarly skewed power structures associated with the legal system, to its pompous claim of knowing-what’s-best-for-all. Further, from regulating the approved attire to the rigidity of which the language is to be used.
Underling all this is the basic premise of law and the legal discourse as it stands today. The unshakeable belief that it is logical and rational to the extent of accommodating all individuals and the lack of any self-doubt regarding its capacities smacks of such arrogance as can only be attached to the narrative of legal reason. Talking about what he refers to as “legal deafness”, Peter Goodrich writes that “it exemplifies an habitual logic of law, one which throughout its history has systematically obliterated difference in all its manifestations…the logic of the common law has been one of a comparable lack of alternatives, of a refusal to recognize that vast host of the other: the outsider, the stranger, the vagrant, the marginal…What is their place in the law, what is their voice, whose language do they use?”
…bolti band? Yet this does not go unchallenged and those who forefronts of this challenge are precisely people like Luharia. Post the judgment of the court, thousands of adivasis and farmers from the Narmada valley descended on the supreme court to condemn its judgment. For a full day they blockaded the gates of the court all the while shouting slogans against its judgment and giving fiery speeches critiquing the fallacy of legal reasoning. It is said that never before in the history of the supreme court has such a picketing taken place.
 Jalsindhi and other adivasi villages are in the forests on the banks of the Narmada. These are isolated in the sense that there are no roads leading to them (to reach Jalsindhi one has to walk for several hours through forests and mountains).
 The ‘gayana’ is a narrative of the creation of the world and its living beings and is sung by the village ‘baduvas’ during the Indaldev pooja.
 The Sardar Sarovar dam is slated to submerge 245 villages, half of which are entirely populated by adivasis.
 Please visit www.narmada.org for more information on this. Also read “Muddy Waters” authored by Rahul Ram for a critique of the costs and benefits of Sardar Sarovar Project.
 There is booklet titled “People Vs Verdict” brought out by ???
 This is all we have to say
 This is the place where the Narmada originates
 For more read “In the belly of the river”, Amita Baviskar
 “Language of Law”, Peter Goodrich