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Potato Head Hypothesising

Mr Potato Head cheats you of several hundred thousand rupees in a business deal. Naturally annoyed by this, you take PH to court to recover your money. By way of evidence, you produce before the court various papers from your deal that demonstrate his crooked ways, that spell out exactly how Mr PH cheated you.

This being a court case, Potato Head can look at these papers too. He does so. Then he tells the court: "I don't agree with what's in these papers. I reject them." Which disagreement, presumably, is entirely natural. After all, the papers do point out his multifarious misdeeds.

How do you think the court should react to what Mr PH says? My answer to that would be: it should examine the papers itself and take a decision on whether to admit them as evidence. Certainly PH is entitled to his opinion on the merit of the papers, but that's no reason either to accept or reject them in court.

Yes, I would certainly expect the judges to decide on the merits of any evidence that implicates Mr PH independently of whatever Mr PH thinks of the evidence. In fact, even though I have no training at all in law, this seems entirely self-evident to me.

Bear with me, this is going somewhere. I offer you this Potato Head hypothesis because I know of a recent petition in real life that one party, let's call it the NBA, filed against another party, let's call it the Union of India. In support of its case, the party we are calling the NBA produced as evidence in court a report that was released back in a year we'll call 1992. This report, let's call it the Morse report, is extremely critical of the party we are calling the Union of India. It explicitly points out the UofI's failures in the very matter the petition raises. Naturally, the Union of India rejected it when it was released.

Yes, I would certainly expect the judges to decide on the merits of evidence -- this Morse report -- that implicates the UofI, independently of whatever the UofI thinks of that evidence. In fact, even if I have no training at all in law, this seems entirely self-evident to me.

Apparently things are not so self-evident in real life. In their judgment in this case, the judges observed:

"The Government ... did not accept the [Morse] report and commented adversely on it. In view of the above, we do not propose, while considering the petitioners' contentions, to place any reliance on the report of Morse Committee."

I swear I am not making this up.

Of course you know by now what I am talking about. The party we are calling the NBA is the Narmada Bachao Andolan. The party we are calling the Union of India is the Union of India. The petition we are discussing is the one the NBA filed against the UofI some years ago, that the Supreme Court dismissed last October 18, thus allowing the resumption of construction of the Sardar Sarovar dam on the Narmada. The report we are calling the Morse report is the Morse report. It was indeed written and submitted in 1992, after a comprehensive review of the project.

And if you know what I am talking about, you probably know that the Morse report was a severe indictment of the Sardar Sarovar project. It found resettlement and rehabilitation being half-heartedly pursued; required reports and studies nonexistent or incomplete; benefits exaggerated, costs discounted. And for a project conceived out of the urgent need for water in dry parts of Gujarat, this sentence in the report showed just how far from that conception reality is:

"Despite the stated priority of delivery of drinking water, there were no plans available for review."

That's right, "no plans." A good generation after people first began thinking about that Sardar Sarovar dam on the Narmada, as a solution to thirst in vast dry regions of Gujarat, the builders of the dam did not even have "plans" for drinking water to show the Morse Committee.

At the beginning of the report, Morse explicitly and gratefully acknowledges the full, generous co-operation he got from the governments concerned during the review. This is important to remember only because given how critical the report is, it would have been easy for these governments to say Morse refused to hear their case. But he did hear their case. And he crowns his critique of a misconceived project with this astonishing statement:

"The Sardar Sarovar Projects are likely to perpetuate many of the features that the [World] Bank has documented as diminishing the performance of the agricultural sector in India in the past."

That's right: given how the project was shaping, Morse concluded that it would actually stunt agricultural performance in India. Now that's what we truly need in a country where hunger is a daily preoccupation for hundreds of millions of us.

No wonder the Government of India doesn't like this report.

No wonder, too, that the NBA offered it up as evidence in the Supreme Court.

To reiterate the point: No doubt the court is at liberty to accept or throw out this report as evidence against the government. Courts are supposed to take decisions like that. Since it was presented as evidence, I would have expected my Supreme Court to consider the findings of the report and then decide whether to accept them or not. Of course, I would have liked the court to accept them. But I am hardly trying to assert that everybody in the world must agree with the Morse report. I am quite willing to believe the court would have, on reading the report, found no merit in it.

The operative words there being, of course, "on reading the report."

But this Supreme Court rejected the report not after reading it, but based on what the Government of India -- the Government! itself the first respondent named in the petition! -- thought of it. What are we to make of that?

Much has been said about how the NBA, and indeed all of us, should accept the Supreme Court's judgment as is. We must all respect the judiciary, we are told. If the NBA disagrees with the verdict, we are also told, it would be no different from such groups as the VHP that vow never to accept an adverse judicial verdict in the Ayodhya tangle.

All well and good. But respect does not preclude scrutiny. In fact it seems to me that scrutiny is the only way to be sure our courts do function as the guardians of justice and democracy they are meant to be. We can presume the judiciary acts with justice and logic, but we can make that presumption only because we watch its functioning closely and carefully. In fact, such scrutiny must be the true meaning of this respect for the judiciary.

And that's why it's important to read and understand what's in the judgment the Supreme Court has handed down in the Narmada case. When I did that, I found much to disagree with. That was hardly a surprise, for I had expected no less. But what was a surprise was the reasoning behind the decision. Again and again through the judgment, I found examples of such reasoning that were breathtakingly baffling, and I think that would be true of anyone who reads it. Their Honours' dismissal of the Morse report is just one example. There are many more.

I am aware that dam lovers will dismiss this article as mere sour grapes. Maybe it is. But consider again: what I thought I would find when I read the judgment was a careful, reasoned dismissal of the NBA's case. I was ready for that, and such a vital national issue deserved no less. What I found instead was Mr Potato Head. Well, I suppose that's what scrutiny sometimes does.

Dilip D'Souza