ON May 7, a five-member Constitution Bench of the Supreme Court permitted the Tamil Nadu government to raise the water level in the Mullaperiyar dam to 142 feet from 136 feet.
It also declared “unconstitutional” the law passed by the Kerala Assembly in 2006 that rendered the apex court judgment on the issue in 2006 redundant. [The Kerala law empowered the State to constitute a Dam Safety Authority, which had the power to fix the water level in the dam.] It further said that the law had “usurped” judicial powers.
The Bench of Chief Justice R.M. Lodha and Justices H.L. Dattu, C.K. Prasad, Madan B. Lokur and M.Y. Eqbal permanently restrained Kerala from interfering with the right of Tamil Nadu to raise the water level in the dam to 142 feet. It pointed out that the Constitution had ensured separation of powers among the executive, the judiciary and the legislature and that one should not encroach upon the domain of the other.
It observed that the independence of the judiciary alone would ensure the rule of law. The Kerala legislation, the court noted, could be invalidated on the grounds that it violated the doctrine of separation of powers and interfered with the judiciary’s functioning though a legislature might have the competence to do so.
“If it is found that there was transgression of constitutional principles in the separation of powers, the court can declare the law void,” the Bench observed. It said the legislature could only amend a law but not invalidate a judgment or a decree.
The Bench appointed a three-member committee with the Chairman of the Central Water Commission (CWC) as its chairperson, and with representatives from Kerala and Tamil Nadu to ensure that the dam’s water level was raised to 142 feet. The committee would also inspect the dam periodically before and during the monsoons to ensure its safety. The Kerala government, the Bench said, should allow Tamil Nadu to carry out all repairs and take all other steps for the safety of the dam.
In 2006, hearing a petition filed by Tamil Nadu, the apex court permitted Tamil Nadu to raise the water level to 142 ft. Within 15 days of the verdict, Kerala enacted a new law to prevent the raising of the water level beyond 136 ft.
In April 2006, Tamil Nadu filed a fresh petition seeking to declare the Kerala law unconstitutional. It countered Kerala’s claims on its jurisdiction over the dam’s water level. The Bench appointed an Empowered Committee, headed by former Chief Justice of India A.S. Anand, to go into the safety aspects of the dam. The committee submitted its report in April 2012. Kerala defended the Dam Safety Act and insisted that it had the right to enact a law on the safety of dams in the State.
After eight years of legal wrangling, the apex court decreed the suit in favour of Tamil Nadu.
R. Ilangovan
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