In a major victory for Tamil Nadu, the Supreme Court on Wednesday declared as unconstitutional the law passed by Kerala in 2006, constituting the Dam Safety Authority to prevent the State from raising the water level in the Mullaperiyar dam from 136 ft to 142 ft.

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. By enacting the law and fixing the storage height of the dam at 136 ft, Kerala had nullified the 2006 judgment and usurped judicial power and thus interfered with the judicial functioning.

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 a legislation could be invalidated on the ground that there was a breach of separation of powers in enacting the law, though the Legislature might have the competence to do so. The Bench said “If the court finds that there was transgression of constitutional principles in separation of powers the court can declared the law void.”

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.

The Bench appointed a three-member committee with chairman of the Central Water Commission as the chairperson and representatives from the States of Kerala and Tamil Nadu to supervise and ensure that the water level in the Mullaperiyar dam was raised up to 142 ft.

Eight-year wait ends

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. On a suit filed by Tamil Nadu, the apex court in 2006 permitted the State to raise the water level from 136 ft to 142 ft. Within 15 days of the verdict, Kerala enacted a law and constituted Dam Safety Authority to prevent Tamil Nadu from raising the water level beyond 136 ft. In April 2006, Tamil Nadu filed a fresh suit to declare the law as unconstitutional. On Wednesday, after eight years the apex court decreed the suit in favour of Tamil Nadu.

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