“It is enacted to prevent raising water level in the dam beyond 136 feet”

Kerala on Tuesday asserted in the Supreme Court that the 2006 law only created a statutory framework for regulating water level in respect of dams within the State and it would not amount to usurpation of judicial power.

Senior counsel Harish Salve, appearing for Kerala, made this submission before a five-judge Constitution Bench of Justices R.M. Lodha, H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal, hearing the suit filed by Tamil Nadu challenging the law enacted by Kerala to prevent raising the water level in the dam beyond 136 ft.

Mr. Salve said “the law, in pith and substance, creates a statutory framework for regulating the water level in respect of dams within the State, both scheduled and non-scheduled. It establishes a statutory authority, which confers upon it the power to take certain measures in the interest of public safety. There is nothing in the 2006 judgment of this court, which would suggest that the Kerala Legislature lacked the power to make measures for a public safety in relation to reservoirs situated within the State. The question of these provisions being tainted by the vice of usurpation of judicial power does not arise.”

Responding to the question from the court whether it was open to the Legislature to declare the Mullaperiyar dam as unsafe after the Supreme Court in 2006 had rendered a finding of fact that the dam was safe, Mr. Salve said “in declaring a dam to be unsafe, the legislature does not render a finding of fact. It deems the dam to be unsafe and sets up an authority to regulate the dam in a particular manner. As to what constitutes an endangered dam is, it is substantially a matter of legislative policy. In that, it is the element of safety that would invariably depend on the degree of harm and the element of risk it involves – which are further policy factor, which is always open to the legislature to take into account.

Mr. Salve refuted the contention that the legislation was the usurpation of judicial powers. He said such a contention was misconceived. He said “A court through the process of adjudication renders findings and adjudication is always as per law in force. Once the law in force is altered, the adjudication cannot stand on its own. A court’s decision binds unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. One of the methods adopted by the legislature is to give its own meaning and interpretation of the law, and by legislative fiat make such interpretation binding on the courts.”

On Tamil Nadu’s contention that Kerala Legislature had no material before it to come to such a conclusion within 15 days of the judgment or that the legislature was bound by the finding of fact rendered by this court that the dam was safe, Mr. Salve said “such a contention is misconceived. It is settled law that in adjudicating upon constitutional validity, the court must proceed on the premise that the legislature understands and correctly appreciates the needs of its own people and its laws are directed to the problems made manifest by its experience and are based on adequate grounds.”

Mr. Salve said “River Periyar does not touch any part of Tamil Nadu. It is therefore an intra-State river and not inter-State river and Tamil Nadu has no pre-existing or Constitutional rights against the State of Kerala. Consequently, there are no inter-State fetters on the legislative powers of the Kerala Legislature to enact Amendment Act of 2006.”

At this juncture to a question from Justice Lodha, senior counsel for Tamil Nadu Arvind Bobde refuted Mr. Salve’s contention and said Periyar river was an inter-State river and this had been accepted by Kerala in the 2006 judgment.