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RARELY has a judgement of the Supreme Court elicited such strong negative reactions as its recent pronouncements in the Sardar Sarovar dam case. The dismay is widespread not just in the social movement sector, for whom the Narmada Bachao Andolan led struggle has arguably been the most high profile and discussed engagement with the Indian state’s social development policies, but also for those who have held the Supreme Court, in particular its innovation in crafting Public Interest Litigation, as a primary avenue for accommodating the concerns of the less well-off in society.

There is little doubt that the majority judgement, even if on expected lines, does mark a retrogression in the orientation of the court. From the period of Justices Bhagwati and Krishna Iyer, the Supreme Court had become the favoured arena to both expand the domain of fundamental rights, as also make many of the provisions under the Directive Principles of State Policy justiciable. Sangeeta Ahuja’s People, Law and Justice (Orient Longman, 1997) provides an admirable summary of the courts’ many labours in this regard. In fact, so enthusiastic was the reading of this innovation that many commentators were willing to overlook the resultant distortions between the legislature, executive and judiciary created by the courts’ activism and expansion of domain.

In the case under consideration, the majority view in the Supreme Court has gone well beyond vacating the stay on further construction of the Sardar Sarovar dam or even privileging the official as against the Andolan’s ‘understanding’ of the progress on the rehabilitation and compensatory afforestation fronts. It has, despite the issue being outside the agreed upon terms of reference, peppered its judgement with remarks portraying large dams as an unambiguous social good. Worse, it has decreed the prime minister as the final arbiter in any further disputes, undercutting the possibility of a fair, non-partisan hearing.

Many, including this writer, have seen this turn of events as a bad body blow to both the NBA as also the strategy of using the courts as a lever to pry open extant social arrangements in favour of the underpriveleged. I have elsewhere argued (The Hindu, 25 October 2000) that some of the ‘blame’ rubs off both on the shifts in the wider environment (the move towards neo-liberal policies) as also the political practice of the Andolan. To, however, read in this an end of the era of progressive court intervention or space for social movements of the underprivileged would be a gross overstatement.

To take the courts and judiciary first. As in earlier phases, the judiciary continues to present a mixed picture. In the matter of pollution control, it continues on its interventionist streak (re. the various directives to reduce air pollution in Delhi). In, however, the disputes over reserve forests and wastelands, the favoured interpretation tilts towards potential corporate investors, often disregarding the claims of those who survive on the commons, forget wildlife.

So too in the cases relating to fundamental rights which have, more often than in the past, censured the executive and even made specific officials liable for the payment of compensation, say in instances of custodial or extra-judicial deaths. The battle in the court’s terrain must, therefore, continue, including for demo-cratizing and making it more accountable. What equally needs to be avoided is overloading the court with expectations. If it is seen today as politicised, it is because of a tendency to draw it into terrains which, both formally and substantively, belong to the legislature and executive.

Similarly, the ‘market’ for social movements – gender, environment, human rights – is both expanding and contracting simultaneously. There is little doubt that the collective labours of the activist community has dramatically altered social, if not official, perceptions of not just goals and values but processes to achieve them. Of course, the space seems more liberal at the level of discourse than practice. It is equally undeniable that the dominant ideology is far better disposed towards a speedier creation of wealth than concerns of equity.

The new era is witnessing a globalisation of not just capital and labour but discourses and actors. The ‘redefining’ of the local and national demands that we carefully scrutinise the role of new actors and ideologies that today decisively impact on situations and choices earlier regarded as ‘internal’. Immature, often unthinking, activism can and does create a backlash. Unless our movements creatively re-invent themselves, their worst fears, that of reduced space for the erstwhile dispossessed as active subjects, might well become a reality. That indeed would be a tragedy.

Harsh Sethi