J. Venkatesan

New Delhi: Kerala’s law to prevent Tamil Nadu from giving effect to the Supreme Court judgment of February 2006 is a colourable exercise of power, argued former Attorney General and senior counsel K. Parasaran in the Supreme Court on Wednesday.

Making his submissions before a five-Judge Constitution Bench, comprising Justices D.K. Jain, B. Sudershan Reddy, Mukundakam Sharma, R.M. Lodha and Deepak Verma, the senior counsel, appearing for Tamil Nadu, asserted that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 Act was an attempt to subvert and reverse the judgment of the Supreme Court and clearly unconstitutional.

The Bench is hearing a suit filed by Tamil Nadu questioning the law enacted by Kerala to prevent raising the water level of the dam beyond 136 ft.

Miniature model

A miniature model of the dam and the baby dam brought by Tamil Nadu was placed in the court hall in front of the Judges to facilitate proper explanation during the hearing.

Mr. Parasaran pointed out that the law was enacted within a few days of the Supreme Court judgment to prevent its implementation. The law empowered Kerala’s Dam Safety Authority to arrive at its own findings on dam safety and direct measures to be taken, and also to direct Tamil Nadu to suspend or restrict the functioning of the Mullaperiyar dam or even decommission it.

He submitted that the rights of Tamil Nadu under the original agreement had crystallised into a decree of the Supreme Court and Kerala was not entitled to take away the fruits of the decree by passing a legislation, which was ultra vires the Constitution.

When Justice Jain sought to know whether the Dam Safety Authority could not go into the safety of the structure at all, Mr. Parasaran said: “They can, but if they have any apprehension they should ask Tamil Nadu first and seek its cooperation on strengthening the safety rather than preventing implementation of the judgment.”

To drive home the mala fide intention, Mr. Parasaran said the law was enacted within 15 days of the Supreme Court judgment without any new facts or materials only for the purpose of reversing it. Neither Parliament nor State Legislature was competent to nullify a Supreme Court judgment.

He said: “The Kerala government has been repeating the song that the dam is more than 100 years old and should be de-commissioned. Their only intention is to have control over the dam. It is not the age of the dam. It is how you maintain it and how the dam can withstand serious floods. All these factors have been considered by the expert committee and the Supreme Court when delivering the judgment.”

Public safety

Referring to Kerala’s contention that it was concerned at public safety, Mr. Parasaran said, “Tamil Nadu is equally concerned about public safety and the interests of the farmers who are dependent on water supply from this dam when you [Kerala] say that I will de-commission the dam.”

Arguments will continue tomorrow.