Whether a dam is safe or not is a matter for expert determination. If there is a difference among the experts, then it is not for a judge to say which view is right

This article will argue that the latest judgment of the Supreme Court on the Mullaperiyar dam case, and the earlier judgment of 2006, are in error, in the sense that they go beyond the judicial domain, but first a few clarifications are necessary.

One, there is no doubt that there is an inter-State dispute in this case. This then will come within the purview of either (the general) Article 131 or (the specific water-related) Article 262 of the Constitution. This is not a case that falls under Article 262 or the Inter-State Water Disputes Act 1956, amended in 2002. The Periyar is only marginally an inter-State river, i.e. a very small portion of the catchment falls within Tamil Nadu. Tamil Nadu’s rights over Periyar waters arise not from this fact, but from an agreement between the Madras Presidency and the princely state of Travancore in 1886. It follows that this case falls not under Article 262 but under Article 131, and the Supreme Court’s original jurisdiction in such a case cannot be questioned.

Secondly, it is not the purpose of this article to defend the Kerala Act which has been struck down (in so far as it relates to this dam). When a decision given by the Supreme Court under an existing law or provision of the Constitution is considered by Parliament to have public policy implications, it is not uncommon for legislation to be passed changing that law or amending that provision of the Constitution (prospectively). It is needless to say that law or amendment will again be subject to judicial review. These are not the questions that arise in this case. What the Court’s latest judgment says is that the 2006 judgment had given a determination on a fact in dispute between the two States, and that one of the parties cannot pass a law that goes against that determination. This article merely takes note of this. (Incidentally, the judgment also rejects the application of the Precautionary Principle. If that principle cannot be invoked in the case of a dam that is nearly 120 years old, in what case can it be invoked?)

Thirdly, this article will also refrain from examining whether the old 1886 agreement was fair to Kerala, whether Kerala has a legitimate grievance, whether the beneficiary areas in Tamil Nadu had other options for meeting their genuine needs, and so on.

Fourthly, it must be noted that this is not a water-sharing dispute. Tamil Nadu’s claims over Periyar waters arising from the 1886 agreement are not being disputed or repudiated.

The issue in question

The issue here is only whether the dam is safe enough to be filled to the level that Tamil Nadu desires, or whether Kerala’s fears are justified and the water level must be kept lower. On this, the Supreme Court has given a verdict in favour of Tamil Nadu. That may be a right or wrong view, but the question is whether the safety of a dam is a matter for judicial determination. The dam will not become safe because the learned judges say so, and it will not become unsafe if the learned judges consider it unsafe. (One is reminded of the English legend of King Canute and the sea.) This is clearly a matter for expert determination. If all the experts agree, then there is no need for a judicial determination. If there is a difference among the experts, then it is surely not for a judge to say which view is right.

In this case, the Supreme Court has gone by the findings of a Committee appointed by it. It was only by assuming that the safety of a dam was a matter on which it could make a judicial pronouncement that the Court proceeded to appoint a Committee. That assumption was questionable and so was the appointment of the Committee. When the case came before it, the Supreme Court could well have said “This is not a matter for a judicial determination. Please consult the experts and then take an agreed decision.”

Difference among experts

The fact is that there continue to be differences among experts. The Committee appointed by the Supreme Court might have come to a certain conclusion but other experts could have a different view. What does one do in such a case? There is really no alternative to an agreement between the States, however hard that course might be. The two States could have appointed a joint Expert Committee and gone by its findings. The Inter-State Council, a constitutional body, could have taken up the matter and tried to bring about a settlement. Eminent persons in both States could have tried for a rapprochement. Given a modicum of good sense, the two sides might have accepted the recommendations of such a group. They might even have been persuaded to accept voluntarily the arbitration of a joint expert body. The crucial words here are ‘agreement’ and ‘voluntarily.’ The one course that ought not to have been followed was adjudication by the Supreme Court on the safety of the dam. One wishes that the Supreme Court had refused to entertain the case and pushed the two States to talk to each other.

Even at this late stage one fervently hopes that the two States will see wisdom in exploring different options and arriving at an agreed settlement.

(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)

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