The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India

Leiden Journal of International Law

Volumn 18, Issue 3, 2005, Pages 345-387

  Rajagopal, Balakrishnan ^a  

^a MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

Author keywords

compliance; counter hegemonic globalization; global legal pluralism; Law; Narmada; social movements

Indexed keywords

EID: 36549069317     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002797     Document Type: Article

References (192)

1. The literature on compliance is now vast. For a review, see B. Simmons, Compliance with International Agreements, Annual Review of Political Science (1998) Vol. 1, 75-93. See also G. W. Downs et al., ‘Is the Good News About Compliance Good News About Cooperation?’, (1996) 50 Int'l Org. 379; G.W. Downs and M. A. Jones, ‘Reputation, Compliance, and International Law’, (2002) 31 J. Legal Stud. 95. A different stream of international relations literature, influenced by social constructivists, focuses on how international norms have an influence on domestic political change. See e.g., T. Risse, S. Ropp, and K. Sikkink (eds.), The Power of Human Rights: InternationalNorms andDomestic Change (1999). Given the focus ofmy article, I am much more concerned with the latter literature.
2. See A.Chayes and A.HandlerChayes, TheNewSovereignty: Compliancewith InternationalRegulatory Agreements (1995), and A. Chayes and A.Handler Chayes, ‘On Compliance’, (1993) 47 Int'l Org. 175; H.Hongju Koh, ‘Why DoNationsObey International Law?’, (1997) 106 Yale L.J. 2599; ‘Is International LawReally State Law?’, (1998) 111 Harv. L. Rev. 1824.
3. In human rights law, see O. A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’, (2002) 111 Yale L.J. 1935, at 2002. For refutation, see R. Goodman and D. Jinks, ‘Measuring the Effects of Human Rights Treaties’, (2003) 14 EJIL 171. See alsoK. Raustiala, ‘Compliance and Effectiveness in International Regulatory Cooperation’, (2000) 32 CaseW. Res. J. Int'l L. 387.
4. See Simmons, human rights law note 1, at 88-9.
5. See Risse, Ropp, and Sikkink, Simmons note 1. The index does not list the word ‘court’. Simmons.
6. Of course, there is an emerging idea that globalization is itself a phenomenon that is slowly tapering off, not possessing the kind of vigour it had in the 1990s. I do not engage here with this larger theoretical and empirical issue. For discussion, see A. Dirlik, ‘Globalization as the End and the Beginning of History: The Contradictory Implications of a New Paradigm’, (2000) 12(4) RethinkingMarxism 4-22.
7. B. de Souza Santos, Toward a New Legal Common Sense (2002); H. Klug, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction (2000), chs. 3 and 6.
8. Klug, Toward a New Legal Common Sense note 7, at 50-1; G. Esteva and M. Suri Prakash, Grassroots Postmodernism: Remaking the Soil of Cultures (1998).
9. S. Khagram, J. V. Riker, and K. Sikkink (eds.), Restructuring World Politics: Transnational Social Movements, Networks and Norms (2002), ch. 1.
10. World Commission on Dams, Dams and Development: A New Framework for Decision-Making (2000).
11. Y. Dezalay and B. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (1997).
12. A.-M. Slaughter, ‘Judicial Globalization’, (2000) 40Va. J. Int'l L. 1103.
13. B. Ackerman, ‘The Rise ofWorld Constitutionalism’, (1997) 83 Va. L. Rev. 771.
14. T. Carothers, ‘The Rule of Law Revival’, (1998) 77(2) Foreign Affairs 95-106.
15. For an extended analysis of the meaning of counter-hegemonic and hegemonic globalization see Santos, ‘The Rule of Law Revival’ note 7, ch. 9.
16. For a recent example in American legal scholarship, see D. A. Strauss, ‘Common Law Constitutional Interpretation’, (1996) 63 U. Chi. L. Rev. 877.
17. See e.g., S. Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’, (1997) 18 Mich. J. Int'l L. 183.
18. The exception to this is the recent international relations literature which has focused on how transnational social movement action has an impact on domestic implementation, but has its own limitations when it comes to offering a framework for thinking about the relationship between local socialmovements, global norms and national institutions such as courts. See infra, notes 33-7 and the accompanying text.
19. See Santos, The exception to this is the recent international relations literature which has focused on how transnational social movement action has an impact on domestic implementation, but has its own limitations when it comes to offering a framework for thinking about the relationship between local socialmovements, global norms and national institutions such as courts note 7, at 467.
20. See Khagram, Riker, and Sikkink, Santos note 9.
21. B. Rajagopal, ‘International Law and Social Movements: Challenges of Theorizing Resistance’, (2003) 41 Colum. J. Transna'l L. 397.
22. Theideathatdevelopmentalnationalism is afoundationfor state sovereignty isnotnew. See e.g.,B.Rajagopal, International Law from Below: Development, SocialMovements and ThirdWorld Resistance (2003), ch. 2; A.Nandy, ‘State’, inW. Sachs (ed.), Development Dictionary: A Guide to Knowledge as Power (1992).
23. For an influential argument about the politics of law and adjudication fromwhich I have learned much, see D. Kennedy, A Critique of Adjudication: Fin de Siè cle (1998).
24. Art. 262, Constitution of India, available at http://confinder.richmond.edu/.
25. For a discussion of many of these issues, see G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991), at 9-36, 336-43.
26. See Rajagopal, For a discussion of many of these issues note 21.
27. See Nandy, There are differences between US law and British-influenced Commonwealth jurisdictions on thismatter note 22.
28. See R. B. Siegel, ‘Gender and the Constitution from a SocialMovement Perspective’, (2002) 150U. Penn. L. Rev. 297.
29. See e.g., E. Fernandes and A. Varley, Illegal Cities: Law and Urban Change in Developing Countries (1998), ch. 1.
30. For that argument in US constitutional scholarship, see Siegel, Illegal Cities: Law and Urban Change in Developing Countries note 29. In Indian constitutional scholarship, see U. Baxi, ‘A known but an indifferent judge: Situating Ronald Dworkin in contemporary Indian jurisprudence’, (2003) 4 International Journal of Constitutional Law 557; U. Baxi, ‘Taking Human Suffering Seriously: Social Action Litigation Before the Supreme Court of India’, in N. Tiruchelvan and R. Coomaraswamy (eds.), The Role of the Judiciary in Plural Societies (1987). In African constitutional scholarship, see I. Shivji, ‘Constructing ANew Rights Regime: Promises, Problems And Prospects’, (1995) 8 Social and Legal Studies 253.
31. M.Mamdani et al., ‘SocialMovements and Democracy in Africa’, in P.Wignaraja,New SocialMovements in the South (1993).
32. See Risse, Ropp, and Sikkink, ‘SocialMovements and Democracy in Africa’ note 1; M.Keck and K. Sikkink,Activists Beyond Borders: AdvocacyNetworks in International Politics (1998).
33. T. Risse, ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’, in A. M. Florini (ed.) The Third Force: The Rise of Transnational Civil Society (2000), at 189.
34. See Risse, Ropp, and Sikkink, ‘The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights’ note 1, Introduction.
35. Risse., at 17-35. Though they deny that their model implies an evolutionary progression of causal effects, they do not deny that there is an evolutionary progression once transnational networks begin to get involved in a human rights campaign. As my study will show, even a full-blown transnational campaign provides no guarantee that conditions will improve on the ground-in other words, that ‘international norms’ will lead to ‘domestic change’.
36. See Risse note 5.
37. Several book length studies and exhaustively researched chapters exist on the Narmada Valley struggle, which is perhaps one of the best studied. See e.g.,W. F. Fisher (ed.), Toward SustainableDevelopment? Struggling Over India's Narmada River (1995); A. Baviskar, In the Belly of the River: Tribal Conflicts Over Development in the Narmada Valley (1995); S. Sangvai, The River and Life: People's Struggle in the Narmada Valley (2000); N. Gopal Jayal, Democracy and the State:Welfare, Secularism and Development in Contemporary India (2001), ch. 4; S. Khagram, ‘Restructuring the Global Politics ofDevelopment: The Case of India'sNarmada ValleyDams’, in Khagram, Riker and Sikkink, Risse note note 9. See also Rajagopal, Risse note note 22, at 122-7.
38. See Jayal, Several book length studies and exhaustively researched chapters exist on the Narmada Valley struggle note 38, at 153-4).
39. S. Gopal, Jawaharlal Nehru: A Biography (1989), at 192.
40. Jawaharlal Nehru: A Biography., at 193.
41. See Fisher, Jawaharlal Nehru: A Biography note 38, at 12; Jayal, Jawaharlal Nehru: A Biography note 38, at 155.
42. See Jayal, http://www.sardarsarovardam.org/history4.htm note 38, at 155.
43. S. Kothari, ‘Damming the Narmada and the Politics of Development’, in Fisher, Jayal note 38, at 439-40.
44. World Commission on Dams, ‘Damming the Narmada and the Politics of Development’ note 10.
45. This is perhaps why reviews by scholars and practitioners rarely discuss tribal rights. See R. Dhavan and F. S. Nariman, ‘The Supreme Court and Group Life: Religious freedom, Minority groups and Disadvantaged communities’, in B. N. Kirpal, A. H. Desai, G. Subramanium et al. (eds.), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2000).
46. See Jayal, This is perhaps why reviews by scholars and practitioners rarely discuss tribal rights note 38, at 156.
47. Art. 262, Constitution of India; Inter-StateWater Disputes Act, s. 11.
48. A. Patel, ‘What do the Narmada Valley tribals want?’, in Fisher, Art. 262 note 38, at 180.
49. The final order of the Tribunal defined an ‘oustee’ in this manner: ‘An “oustee” shall mean any person who since at least one year prior to the date of publication of the notification under Section 4 of the Act, has been ordinarily residing or cultivating land or carrying on any trade, occupation, or calling or working for gain in the area likely to be submerged permanently or temporarily.’ See Clause XI, sub-clause 1(2), Report of the NarmadaWater Disputes Tribunal, 1978.
50. The final order of the Tribunal defined an ‘oustee’ in this manner., sub-clause IV(7).
51. See Patel, The final order of the Tribunal defined an ‘oustee’ in this manner note 50, at 180.
52. See Fisher, The final order of the Tribunal defined an ‘oustee’ in this manner note 50 note 38, at 13.
53. SeeWritten Submission on behalf of Union of India on The Award, the Project and the Authorities, Supreme Court of India, 2000 (copy on file with the author), at 5B; See also Fisher, The final order of the Tribunal defined an ‘oustee’ in this manner note 50 note 38 note 38, at 15.
54. SeeWritten Submission on behalf of Union of India on The Award, the Project and the Authorities, Supreme Court of India (copy on file with the author), at 14-15.
55. SeeWritten Submissions on behalf of the Petitioners, February 2000: Displacement, Resettlement and Rehabilitation, Supreme Court of India (copy on file with the author), at 1.
56. See Written Submission of Narmada Bachao Andolan, Supreme Court of India, 2000 (copy on file with the author), at 55-68.
57. Right to property was guaranteed under Art. 19 of India's Constitution but had been the subject of a major confrontation between the courts and the legislatures since the early 1950s, especially over the question of compensation and agrarian land reform. Finally, during the Emergency in 1975-8, imposed by Prime Minister Indira Gandhi, when fundamental rights were suspended, Art. 19 and Art. 31 were amended to delete right to property as a fundamental right. See G. Austin,Working a Democratic Constitution (1999).
58. In the literature both on social movements and on transnational networks, the impact of law-especially private law-as a background phenomenon that affects political opportunities available for contestation is not well recognized. In the legal literature as well, the impact of private law on the operation of public law (such as that of land law on human rights) is not typically focused on.My study partly aims to redress this.
59. See Khagram, the literature both on social movements and on transnational networks, the impact of law-especially private law-as a background phenomenon that affects political opportunities available for contestation is not well recognized note 38, at 210.
60. I borrow this framing from Fisher, the literature both on social movements and on transnational networks, the impact of law-especially private law-as a background phenomenon that affects political opportunities available for contestation is not well recognized note 38 note 38, at 19.
61. See M. Patkar, ‘The struggle for participation and justice: A Historical narrative’, in Fisher, I borrow this framing from Fisher note 38, at 175.
62. See e.g., Operational Manual Statement 2.33, February 1980 on involuntary resettlement (since superceded by OMS 4.30, June 1990); OMS 2.34, 1982 on tribals in Bank projects; OMS 2.36, 1984 on environmental guidelines, available at www.worldbank.org.
63. See Khagram, Operational Manual Statement 2.33 note 38, at 209.
64. See Jayal, Operational Manual Statement 2.33 note 38 note 38, at 162.
65. See Khagram, Operational Manual Statement 2.33 note 38 note 38 note 38, at 211.
66. See Patel, Operational Manual Statement 2.33 note 38 note 38 note 38 note 50, at 183.
67. Operational Manual Statement 2.33 note 38 note 38 note 38 note 50., at 186.
68. See Khagram, Operational Manual Statement 2.33 note 38 note 38 note 38 note 50 note 38, at 214.
69. See Patel, Operational Manual Statement 2.33 note 38 note 38 note 38 note 50 note 38 note 50, at 187.
70. See Sangvai, Operational Manual Statement 2.33 note 38 note 38 note 38 note 50 note 38 note 50 note 38, at 154.
71. See Patel, Operational Manual Statement 2.33 note 38 note 38 note 38 note 50 note 38 note 50 note 38 note 50, at 188.
72. See Khagram, Due to the pressure from theWorld Bank and the local groups, the Gujarat government made its package for resettlement and rehabilitation more generous, including a minimum of 5 acres of land for those who owned land and extending its package to encroachers as well note 38, at 211.
73. See B.Morse and T. Berger, Sardar Sarover: Report of the Independent Review (1992), 47.
74. See OperationalManual Statement 2.36, 1984, theWorld Bank.
75. For a discussion of these developments, see Khagram, OperationalManual Statement 2.36 note 38, at 218-19.
76. See Patel, For a discussion of these developments note 50.
77. See Jayal, For a discussion of these developments note note 38, at 160.
78. See Khagram, For a discussion of these developments note note 38 note 38, at 220.
79. See Patkar, For a discussion of these developments note note 38 note 38 note 64.
80. For a discussion of these developments note note 38 note 38 note., at 160-1.
81. See Jayal, For a discussion of these developments note note 38 note 38 note note 38, at 163.
82. The World Bank's legal advisor, Mohan Gopal, was from India and he professed ignorance about such a requirement under Indian law. See Patkar, For a discussion of these developments note note 38 note 38 note note 38 note 64, at 174.
83. See L. Udall, ‘The International Narmada Campaign: A Case Study of Sustained Advocacy’, in Fisher, The World Bank's legal advisor note 38, at 212.
84. SeeMorse and Berger, ‘The International Narmada Campaign: A Case Study of Sustained Advocacy’ note 77.
85. See Jayal, SeeMorse and Berger note 38, at 164.
86. A big provocation for this resolution was the NBA's lobbying at theWorld Bank inWashington DC. This did not, however, mean that theWorld Bank funding was unwelcome or that the state elites themselves would avoid foreign lobbying for the project. Thus, in 1990, the Gujarat Chief Minister traveled to the US and the UK to counter the adverse publicity given to the project and to raise funds from non-resident Indians. See Jayal, SeeMorse and Berger note 38 note 38, at 168.
87. Editorial, The Times of India, 1 November 1989.
88. See Sangvai, Editorial note 38, at 154.
89. SeeMorse and Berger, Editorial note 38 note 77, at 356.
90. See Udall, SeeMorse and Berger note 87, at 208.
91. Though the Indian government said that the funds for the projectwould come out of its own revenue, some think that the Indian government merely ended up divertingWorld Bank funds from other sectoral loans to India. SeeMorse and Berger note 87., at 220.
92. See Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
93. See Sangvai, Olga Tellis v. Bombay Municipal Corporation note 38, at 154.
94. B. D. Sharma v. Union of India, 1992 Supp (3) SCC 93.
95. See Sangvai, of India note 38, at 154.
96. See Jayal, of India note 38 note 38, at 185.
97. See Sangvai, of India note 38 note 38 note 38, at 155.
98. of India note 38 note 38 note 38., at 63.
99. Themembers of this panel were Dr Jayant Patil (as chair), Dr Vasant Gowariker, Mr L. C. Jain, Professor V. C. Kulandaiswamy and Dr Ramaswamy R. Iyer.
100. See Sangvai, Themembers of this panel were Dr Jayant Patil note 38, at 155.
101. Themembers of this panel were Dr Jayant Patil note 38., at 155.
102. The jurisdiction of the Indian Supreme Court has been extended in novel directions through public interest litigation or social action litigation. For a description of the procedural and substantive innovations and an evaluation, See Baxi, Themembers of this panel were Dr Jayant Patil note 38 note 31; See A. H. Desai and S. Muralidhar, ‘Public Interest Litigation: Potential and Problems’, in Kirpal, et al., Themembers of this panel were Dr Jayant Patil note 38 note 47.
103. The bench that accepted the petition consisted of Chief Justice M.N. Venkatachalliah, Justice J. S. Verma and Justice S. P. Barucha.At least the first twojustices had a pro-human rights, liberal reputation by that time. The importance of having friendly justices on the bench would become more and more obvious in the coming years.
104. See Patkar, The bench that accepted the petition consisted of Chief Justice note 64; See Sangvai, The bench that accepted the petition consisted of Chief Justice note 38, at 152.
105. Interview with Prashant Bhushan, counsel to NBA, 17 February 2004.
106. See Sangvai, Interview with Prashant Bhushan note 38, at 70.
107. He had sent a letter to that effect to the Prime Minister inMarch 1994. Interview with Prashant Bhushan note 38., at 67.
108. See Jayal, He had sent a letter to that effect to the Prime Minister inMarch note 38, at 188.
109. Quoted in Sangvai, He had sent a letter to that effect to the Prime Minister inMarch note 38 note 38, at 68.
110. See Jayal, Quoted in Sangvai note 38, at 190.
111. The increased submergence due to the heavy rain during themonsoon played a part in this order. Interview with Prashant Bhushan, Quoted in Sangvai note 38 note 111.
112. See Sangvai, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38, at 70-1.
113. See Jayal, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38 note 38, at 194.
114. See Sangvai, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38 note 38 note 38, at 71; Jayal, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38 note 38 note 38, at 191.
115. See Jayal, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38 note 38 note 38 note 38, at 191-2.
116. During the course of the hearing, Justice Verma said, ‘we have to rise above the law for the protection of human rights’. Quoted in Sangvai, The increased submergence due to the heavy rain during themonsoon played a part in this order note 38 note 38 note 38 note 38 note 38, at 153.
117. See Jayal, During the course of the hearing note 38, at 193.
118. See Sangvai, During the course of the hearing note 38 note 38, at 136; Jayal, During the course of the hearing note 38 note 38, at 194.
119. World Commission on Dams, During the course of the hearing note 38 note 38 note 10.
120. The most plausible reason is that Chief Justice Venkatachalliah and Justice Verma, who had been more friendly to the NBA's cause, retired, and the new bench consisted of Chief Justice Anand, and Justices Barucha and Kirpal. Prashant Bhushan, the counsel for the NBA, feels that the jurisdictional issues were ‘implicitly decided’ in the 2000 judgment. Interview, 17 February 2004.
121. See Sangvai, The most plausible reason is that Chief Justice Venkatachalliah and Justice Verma, who had been more friendly to the NBA's cause, retired, and the new bench consisted of Chief Justice Anand, and Justices Barucha and Kirpal note 38, at 72, 153.
122. See Jayal, The most plausible reason is that Chief Justice Venkatachalliah and Justice Verma, who had been more friendly to the NBA's cause, retired, and the new bench consisted of Chief Justice Anand, and Justices Barucha and Kirpal note 38 note 38, at 193.
123. Quoted in Sangvai, The most plausible reason is that Chief Justice Venkatachalliah and Justice Verma, who had been more friendly to the NBA's cause, retired, and the new bench consisted of Chief Justice Anand, and Justices Barucha and Kirpal note 38 note 38 note 38, at 72.
124. Quoted in Sangvai., at 72-3.
125. Quoted in Sangvai., at 75.
126. Quoted in Sangvai., at 76.
127. Quoted in Sangvai., at 74.
128. Statement by K. K. Venugopal, Supreme Court of India, 1999 (on file with the author). He had been appointed by the court.
129. See Sangvai, Supreme Court of India note 38, at 74.
130. Narmada Bachao Andolan v. Union of India 10 SCC 664.
131. Narmada Bachao Andolan v. Union of India 10 SCC., at 768-70.
132. The Hindustan Times, 1 November 2000.
133. Too numerous to list here. See e.g., B. Rajagopal, ‘The Supreme Court and Human Rights’, The Hindu, 6 December 2000.
134. The most recent book-length critique of the judgment is L. C. Jain, Dam vs. Drinking Water: Exploring the Narmada Judgment (2001). See also the detailed analysis and critique of the judgment available as ‘The Order of the Supreme Court in the Narmada Case: Highlights, Comments and Analysis’ at www.narmada.org; R. R. Iyer, ‘A Judgment of Grave Import’, available at www.narmada.org.
135. Interview with Prashant Bhushan, New Delhi, 17 February 2004. Shanti Bhushan, Prashant's father and a senior counsel, had appeared for the NBA in earlier hearings.
136. See Desai andMuralidhar, Interview with Prashant Bhushan note 108, at 180.
137. See the remarks of R. S. Pathak, J. (as he thenwas) in Bandhua MuktiMorcha v.Union of India, (1984) 3 SCC 161.
138. See J. (as he thenwas) in Bandhua MuktiMorcha v.Union of India note 138, at 702-3.
139. See J. (as he thenwas) in Bandhua MuktiMorcha v.Union of India note 138 note 138, at 769.
140. J. (as he thenwas) in Bandhua MuktiMorcha v.Union of India note 138 note 138., at 746.
141. See Sangvai, the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38, at 140-3; Jayal, the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38, at 196.
142. See Jayal, the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38, at 195.
143. See the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138, at 764, 766.
144. the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138., at 761.
145. See the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138, at 695.
146. the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138., at 701.
147. the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138., at 735.
148. the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138., at 765.
149. The evidence so far is just the opposite, and shows that displaced people in general and tribals in particular aremuch worse off after displacement. SeeWorld Commission on Dams, the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138 note 10; Jain, the remarks of the Deputy PrimeMinister cited above at note 140 and the accompanying text note 38 note 38 note 138 note 138 note 142, at 18-25.
150. See The evidence so far is just the opposite, and shows that displaced people in general and tribals in particular aremuch worse off after displacement note 138, at 765.
151. The evidence so far is just the opposite, and shows that displaced people in general and tribals in particular aremuch worse off after displacement note 138., at 768.
152. See Jain, The evidence so far is just the opposite, and shows that displaced people in general and tribals in particular aremuch worse off after displacement note 138 note 142.
153. See The evidence so far is just the opposite, and shows that displaced people in general and tribals in particular aremuch worse off after displacement note 138 note note 138, at 765.
154. M. Horowitz, The Transformation of American Law, 1870-1960 (1977), ch. 2.
155. See The Transformation of American Law note 138, at 767.
156. The Transformation of American Law note 138., at 729.
157. The Transformation of American Law note 138., at 775, 776, 781.
158. The Transformation of American Law note 138., at 745.
159. The Transformation of American Law note 138., at 762.
160. See the remarks of Justice Verma, The Transformation of American Law note 138 note 123.
161. See the remarks of Justice Verma note 138, at 768, 769.
162. the remarks of Justice Verma note 138., at 696, 697,766.
163. (2000) 9 SCC 572.
164. The Indian Supreme Court is famous for innovating new procedural rules in the domain of public interest litigation. For a review, see Desai andMuralidhar, 9 SCC note 108.
165. See The Indian Supreme Court is famous for innovating new procedural rules in the domain of public interest litigation note 100 and the accompanying text note 138, at 761-2.
166. The Indian Supreme Court is famous for innovating new procedural rules in the domain of public interest litigation note 100 and the accompanying text note 138., at 763.
167. See Slaughter, The Indian Supreme Court is famous for innovating new procedural rules in the domain of public interest litigation note 100 and the accompanying text note 138 note 12.
168. See Slaughter note 138, at 697.
169. Slaughter note 138., at 697-8.
170. Slaughter note 138., at 701.
171. See Slaughter note 138, at 76-7, and accompanying text.
172. Thecourt declared theprecautionaryprinciple inapplicableandinstead reliedontheprincipleof ‘sustainable development’. Narmada Bachao Andolan, Slaughter note 138 note 138, at 727. The court's focus on environmental issues began only during the proceedings in 1999, whereas resettlement and rehabilitation had always been the main issues of contention. Interview with Prashant Bhushan, counsel to NBA, 17 February 2004.
173. In a recent case, the court had declared that the precautionary principle and the polluter pays principle are essential features of sustainable development, and read them into Indian law. The court further declared that rules of customary international law which are not contrary to the municipal law shall also be deemed to have been incorporated into domestic law. See Center for Environmental Law WWF-I v. Union of India, (1999) 1 SCC 263. See also Vellore, Thecourt declared theprecautionaryprinciple inapplicableandinstead reliedontheprincipleof ‘sustainable development’ note 184.
174. The current state of international environmental law relating to the principles of sustainable development and the precautionary principle may be gleaned from a recent decision of the International Court of Justice, Gabcý kovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports, Judgment of 27 September 1997 (Merits) (see especially the concurring opinion of Justice C. G.Weeramantry).
175. See The current state of international environmental law relating to the principles of sustainable development and the precautionary principle may be gleaned from a recent decision of the International Court of Justice note 138, at 767.
176. Interview with Prashant Bhushan, counsel to NBA, 17 February 2004.
177. Re Arundhati Roy, (2002) 3 SCC 343. See also J. Venkatesan, ‘Arundhati Roy jailed for contempt of court’, The Hindu, 7March 2002.
178. KhedatMazdoor Chetna Sangath v. State of M.P., (1994) SCC (6) 260.
179. SuoMotuContempt PetitionNo. 10 of 1996 inWrit Petition (civ) (Judgment dated 1 January 1996, byAgrawal, J.), (1996) SCC (1) 718.
180. Interview with Prashant Bhushan, counsel for NBA, 17 February 2004.
181. Interview with Prashant Bhushan. The petition came before a bench consisting of Justices Variava, Santosh Hegde and Kirpal. Interview with Prashant Bhushan.
182. This was filed in early 2005. Interview with Prashant Bhushan.
183. ‘Gujarat given permission to raise Narmada dam height’, The Hindu, 17March 2004.
184. K. Sharma, ‘Medha Patkar forms political front’, The Hindu, 18March 2004.
185. See Sangvai, ‘Medha Patkar forms political front’ note 38, at 129-32; Jayal, ‘Medha Patkar forms political front’ note 38.
186. For a discussion of the internal tensions within the NBA's constituencies, see Baviskar, Sangvai note 38; Jayal, Sangvai note 38, at 216.
187. See Fernandes and Varley, For a discussion of the internal tensions within the NBA's constituencies note 30 Illegal Cities: Law and Urban Change in Developing Countries (1998), Introduction.
188. See Santos, Fernandes and Varley note 7, ch. 9.
189. See Rosenberg, Santos note 25, C. R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (1998); see Siegel, Santos note 29.
190. I rely on the framework offered by T. R. Rochon and D. A. Mazmanian, ‘Social Movements and the Policy Process’, (1993) Annals, AAPSS, at 75-87.
191. See Khagram, ‘Social Movements and the Policy Process’ note 38.
192. See C.W. Robinson, ‘Risks and Rights: The Causes, Consequences and Challenges of Development-induced Displacement’ (Brookings Institution, 2002).