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Thursday, May 8, 2014

SC landmark judgment on Mullaperiyar ~ overrules Kerala Law of 2006

Altercations between States especially on sharing of river waters has been common … this one is perhaps different….. It is all about water – which has flamed the States to become warring factions and placed at Parliament and doorsteps of Apex Court.  In a land fuelled by perceived notions, a movie Dam 999 further fuelled the hysteria. The river  originates from the Sivagiri peaks (1800m MSL) of Sundaramala in Tamil Nadu; runs a  total length of about 244 Kms, flows northwards for 48 kms and at Thekkady joins the west-flowing Mullayar – it is the river Periyar on which the dam constructed is a bone of contention – the Mullaperiyar dam.  The Mullaperiyar Dam is a masonry gravity dam on the Periyar River, located 881 m (2,890 ft) above mean sea level on the Cardamom Hills of the Western Ghats in Thekkady, Idukki District of Kerala.  It was constructed between 1887 and 1895 by the British Government to divert water eastwards to Madras Presidency area (the present-day Tamil Nadu). 

It traces back to the dates of Maharaja of Travancore signing a lease with the Centre for irrigation works in 1886.  In 1970 a deal permitted Tamilnadu to generate power … this century has seen legal battle between TN and Kerala on dam’s height. In 2006 Kerala passed an Act prohibiting raising of water level beyond 136 feet. Tamil Nadu naturally is feeling happy with the judgment of Supreme Court agreeing to raise the water level of Mullaperiyar dam. It is the culmination of a long 15-year-old legal battle  when the Supreme Court on Wednesday allowed it to raise water level in the dam up to 142 feet. The apex court pulled up the Kerala government for enacting a law prohibiting raising of water level beyond 136 ft in February 2006 and thereby over-ruling its verdict, by which it had declared the dam safe and allowed the Tamil Nadu authorities to raise the water level.  The Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature has been quashed as "unconstitutional".

A five-judge Constitution Bench of Chief Justice R.M. Lodha and Justices H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal, allowing the suit filed by TN permanently restrained Kerala from interfering with the rights of Tamil Nadu from raising the water level in the dam from 136 ft to 142 ft. Justice Lodha, who wrote the judgment, also restrained Kerala from enforcing its law on Tamil Nadu. The Bench said the Constitution envisaged separation of powers among the Executive, Judiciary and Legislature and one should not encroach into the domain of the other. Independence of the judiciary and courts alone would ensure rule of law, the Bench said. The Bench said the Legislature could only amend the law but could not invalidate a judgment or a decree passed by the court. The law enacted by Kerala legislature was an attempt to interfere with the judicial functioning, the Bench said and struck the law as unconstitutional and void.

To allay the apprehensions of Kerala, though none exists, the Bench said the committee should make periodic inspection of the dam, before the monsoon and during the monsoon and take all steps necessary for the safety of the dam. The Kerala government was directed to allow Tamil Nadu to carry out all repairs and take all other steps for the safety of the dam.

The Supreme Court’s judgment in the Mullaperiyar dam case has comprehensively settled the inter-State row, which has been bothering Tamil Nadu and Kerala for over 30 years, according to senior water experts. One would logically expect the instruction of the Apex Court to prevail but politics that too regional flavour is a different cup of tea.   The dam issue has already stoked passions and  created a lot of bad blood between the people of the neighbouring states, which even led to attacks, counter-attacks and an economic blockade. 

As some point out poignantly, on February 19, 2013, the Union government notified the final order of the Cauvery Water Disputes Tribunal, as demanded by Tamil Nadu for long. The gazette notification took its own time ……. and whether it is fully implemented is too well known.

The immediate reaction in the neighbouring state is a dawn-to-dusk hartal called by the Mullaperiyar Action Council. Though no political party has so far come out in support of the hartal call, almost the entire political spectrum in the State has expressed shock and dismay at the Supreme Court verdict. Chief Minister Oommen Chandy was cautious in his response to the verdict and told reporters in Thiruvananthapuram that the government would continue to pursue measures aimed at ensuring safety of the life and property of the people of the State after studying the text of the verdict. Water Resources Minister P.J. Joseph told reporters that the government would explore possibilities for filing a review petition in the Supreme Court.

With regards – S. Sampathkumar
8th May 2o14.

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