Inter-State Water Disputes

Mullaiperiyar Dam Controversy: Myths, Realities, and Challenges

A 120-year-old dam owned and operated by Tamil Nadu, but located in neighbouring Kerala, has been cause for an inter-State water conflict in southern India. The Hindu Centre’s former Public Policy Scholar, K.V. Thomas, who is also a retired officer of the Intelligence Bureau, points out that despite clear verdicts from the judiciary and expert committees, the dam has become an issue that can be played up for political expediency. One way to resolve the stand-off, he says, is to consider alternative dispute resolution mechanisms.


The recent statement of Pinarayi Vijayan, the newly elected Chief Minister of Kerala, on the Mullaiperiyar Dam has resulted in angry response and criticism from political parties and environmentalists in the State. Speaking to media personnel in New Delhi during his first visit to the capital after assuming office, Vijayan said that the view of the Empowered Committee of the Supreme Court on the safety of the dam could not be overlooked. Incidentally, the view of the Committee was that the dam was safe. Vijayan also added that there was no need to whip up passions on the issue and it needed to be settled between the two States concerned—Kerala and Tamil Nadu. When his remarks kicked up a row, he clarified that the Left Democratic Front (LDF) government in the State was not against the construction of a new dam, but it required the support and cooperation of Tamil Nadu. He added that an international panel would be assigned to examine the safety concerns of the present dam. Despite his clarification, the Indian National Congress (INC) and the Bharatiya Janata Party (BJP) kept up the pressure on the newly elected CM.



Over the decades, the Mullaiperiyar Dam had become a contentious issue between Kerala and Tamil Nadu. While Kerala’s main concern was the safety of the 120-year-old dam and the people living downstream of the river Periyar, for Tamil Nadu, the Dam serves as a lifeline for the Southern parts of the State, providing for its irrigation and drinking water needs, besides helping in generation of power. With overriding sentiments of provincial nationalism rampant among a sections of the people in both the States, politicians and chauvinist groups often conveniently play up the issue for political expediency and vested interests. It is often alleged that these vested groups, camouflaging real issues and distorting facts and figures, try to exploit the emotions that are dominant in the collective consciousness. Some quarters allege that sensational films like the ‘ Dam 999 1 , based on the Banqiao Dam disaster of 1975 in China, are produced for screening before the panic-stricken people of the area to incite their passions. In 2011, the fear of Mullaiperiyar Dam breaching and washing away almost the entire population of the Central Travancore districts (Pathanamthitta, Alappuzha and Kottayam districts), gripped Kerala fanned by such propaganda after a few mild tremors were recorded in the catchment area of the dam. The fear campaign did manage to have some success leading to several protests and demonstrations on both sides of the border.

The Mullaiperiyar Dam—a masonry dam—was constructed in 1895 pursuant to the 1886 Lease Agreement between the Maharaja of Travancore and the Secretary of State for India in Council. The Dam is located 2,890 feet above the mean sea level on the Cardamom Hills of Western Ghats in Idukki District of Kerala. Its height is 176 feet and length, 1,200 feet. The length of the Baby Dam is 240 feet.

One should not ignore the reality that the main purpose of the construction of the Dam—initially envisaged by the British and subsequently endorsed by the Indian Union through a number of judicial pronouncements—is to provide water to the arid rain-shadow regions of southern Tamil Nadu that face acute shortage of water. In fact, around 80 lakh people, including about 6.8 lakh farmers, in five drought-prone districts, Theni, Dindigul, Madurai, Sivagangai and Ramanathapuram, are benefitted through the supply of water for irrigation and drinking purposes from the Mullaiperiyar Dam. It is to meet this purpose that the alignment of the Periyar River, which flows westward to Kerala, was diverted towards the Bay of Bengal through a rare engineering feat. The much hyped slogan of Kerala, the key contender in the Dam issue, that goes as ‘Water for Tamil Nadu and Safety for Kerala’, acknowledges this reality.

Another related issue is the question of legal right claimed under the 1886 lease deed. As per the agreement, 8,000 acres of land for the reservoir and another 100 acres to construct the Dam were granted on lease for 999 years to Madras Presidency, which after Independence became the Madras State and then Tamil Nadu. Time and again, Kerala has questioned the fairness of the 1886-agreement and challenged its validity in the Supreme Court. Kerala’s major contention was that the Lease Agreement made between the Maharaja of Travancore and the Secretary of State for India in Council in 1886 had lapsed following the Indian Independence Act, 1947 and the the Reorganisation of States along linguistic lines in 1956 2 . However, the Court categorically stated that the Lease Agreement is valid and Tamil Nadu’s legal right over the Dam cannot be questioned. It may be noted that Kerala entered into supplemental agreements with Tamil Nadu in 1970. In these supplemental agreements, the continuance of the 1886 lease is stated in clear and unambiguous terms. Despite the Court having settled the legal right issue for good, there is still orchestrated propaganda questioning the fairness and validity of the Lease Agreement.

The question of safety of the Mullaiperiyar Dam and the demand for the construction of the new dam are the two vexed issues that make the controversy a Gordian knot. Ironically, two neighbouring States are fighting over a Hamletian question ‘to be or not to be’—whether the dam should exist or not.

The safety issue came up in 1979 after an earthquake caused leaks and cracks in the Dam. Naturally, the Kerala government raised alarm bells on the safety of the structure. The Centre for Earth Science Studies (CESS), Thiruvanathapuram, which conducted an impact study, found that the Dam could not withstand an earthquake above six on the Richter scale. The Kerala State government moved the Union and Tamil Nadu governments to take urgent steps to strengthen the Dam and ensure its safety. Tamil Nadu lowered the water level from 142 feet to 136 feet in order to carry out repairs. The Central Water Commission (CWC) deputed by the Union government, after inspecting the Dam, gave its expert opinion that on completion of emergency and medium-term strengthening measures, the water level in the reservoir can be restored to the full capacity. However, when the water level was not raised after repairs, farmers in Tamil Nadu raised a big hue and cry for having been deprived of water for irrigation.

Views by the judiciary and experts

is pertinent to examine as to how the Judiciary and the various Committees constituted by the government/courts interpreted the key issues of dam safety and the demand for the construction of a new dam. The Expert Committee (EC) constituted by the Union Water Resources Ministry to go into the question of the safety of the dam and raising the water level submitted its report in March, 2001 suggesting that the water level in the reservoir could be raised to 142 feet as that would not endanger the safety of the Dam and allied structures. Despite the above recommendation from the EC, the Government of Kerala continued to resist raising the water level in the reservoir beyond 136 feet.

This was challenged by Mullaiperiyar Environmental Protection Forum (Tamil Nadu) in the Supreme Court through a writ petition. The Supreme Court gave its verdict on February 27, 2006 3 permitting the water level to be raised up to 142 feet and restraining Kerala and its officers from causing any obstruction to the above. The Court also directed the Centre to constitute a Supervisory Committee for the periodic inspection of the dam before and after the monsoon to ensure its safety. However, Kerala, through a hasty legislation [Kerala Irrigation and Water Conservation (Amendment) Act, 2006], passed by the State Assembly, froze the Court decision for almost two years. The Act also floated the idea of the decommissioning of the Dam on safety grounds and the construction of a new dam. Thus, in September 2009, the State got environmental clearance from the Union Ministry of Environment to conduct surveys for the new dam. This was objected to by the Tamil Nadu government.

Tamil Nadu once again approached the Supreme Court, which, on November 10, 2009, referred the matter to a Constitutional Bench. The Bench felt that all the aspects of the dispute, including the safety of the dam, need to be examined by an Empowered Committee (EC), which may help the Court in deciding the matter effectively. Thus, a five-member committee headed by former Chief Justice of India, A. S. Anand, was constituted. Two former judges of the Supreme Court, Justice K.T. Thomas and Justice A.R. Lakshmanan, were nominated by Kerala and Tamil Nadu, respectively, to this Committee. Dr. C.D. Thatte and D.K. Mehta, renowned technical experts, were the other two members. The EC submitted its report to the Supreme Court in April, 2013, with the conclusion that the existing dam is safe on each of the hydrologic, structural, and seismic considerations and that the water level can be raised to 142 feet from the 136-feet level. On the question of the construction of a new dam, the EC felt that in view of the age of the existing reservoir, a new one can be considered as an alternative proposal for which a fresh agreement should be signed by the two States on water sharing and maintenance. However, the water level of that new dam should be fixed at 155 feet.

Based on the above report, the Supreme Court on May 7, 2014, upheld its earlier decision (of 2006) and allowed Tamil Nadu to raise the water level in the dam to 142 feet 4 . The Court also quashed the Kerala Irrigation Water Conservation Act, 2006, on the ground that the law framed by Kerala was unconstitutional as it interfered with the judicial functions and violated the doctrine of separation of powers. The Court also directed the Centre to constitute a three-member Supervisory Committee to allay the apprehensions of Kerala about the safety of the Dam on restoration of the water level to 142 feet. The above Committee should have one representative each from the Central Water Commission and the States of Kerala and Tamil Nadu, it ruled. Though the Apex Court's decision practically sealed Kerala’s legal options, the State moved a review petition, which was dismissed by the Court in December, 2014.

The Apex Court’s decisions and the findings of various committees on the dam issue throw light on certain realities connected with the controversy. The Expert Committees found that the Dam with necessary repair/strengthening works was safe and as such its water level could be raised to 142 feet. Even Justice (Retired) K.T. Thomas, Kerala’s nominee in the Empowered Committee, was of the view that the Dam, which was strengthened thrice, was stronger than a new one 5 .

Perhaps the only exception was the study report by two Professors of Indian Institute of Technology (IIT), Roorke 6 , which indicated the susceptibility of the Dam to earthquake-like conditions. It may be mentioned here that the Idukki mountain zone, which is a seismically unstable plate, had witnessed two quakes over the past decade or so. Yet, the dam survived without any major damage. It is true that none can predict the survival or otherwise of buildings or structures like dams—old and new—in earthquakes measuring above six or seven in the Richter Scale. For example, in the 2001 Gujarat earthquake that was of 7.9 magnitude, several newly constructed buildings in cities like Ahmadabad collapsed, but old structures built during the pre-independence period survived without any major damage. In fact, what matters more is the epicentre of the quake and the manner in which seismic waves travel through the layers of the earth. Thus, no matter how well-built the structure is, or how new or old it is, a particular resonance of the ground during an earthquake can knock down a small structure and spare a skyscraper or a dam. Viewed from this angle, even the demand of Kerala for the construction of a new dam on the grounds of safety is untenable. Moreover, a new dam will open the floodgates of ecological and bio-diversity concerns, which Kerala put forward as its their defence against the raising of water level.

Taking these factors into account, the Supreme Court had observed that the many apprehensions put forth by Kerala on the safety of the Dam and the propaganda in some quarters that a breach in the dam would wipe out three districts of Kerala were baseless 7 . Similarly, highly offensive demands or statements by leaders of certain political parties or chauvinistic groups in Tamil Nadu staking claims to territories adjoining the Dam further vitiated the atmosphere. On many occasions, such claims whipped up parochial sentiments leading to violence and loss of property.

Politicising the Dam

For example, sporadic attacks on Tamils in Kumili (Idukki district) and other parts of Kerala led to retaliation in Tamil Nadu during the last part of 2011. This was the result of the fear that gripped people living downstream of the Periyar River following a series of mild tremors in the high ranges. Perhaps this prompted the Tamil Nadu Governor, K. Rosaiah 8 , to comment in January, 2012 that Kerala’s attempts to whip up mass fear and insecurity through false propaganda was the primary cause of these violent incidents. Similarly, violence was witnessed after the Supreme Court verdict in 2014 permitting Tamil Nadu to raise the water level to 142 feet. In Kerala, there were large-scale protests in Idukki and other districts bordering Tamil Nadu. In the southern parts of Tamil Nadu, passions ran strong and people from Kerala were targeted. Other modes of agitation, such as economic blockade, closing of all roads and suspending food supply to Kerala caused considerable difficulties to people on both sides.

Over the last three decades, the Mullaiperiyar issue has become the most sensitive political issue that has been exploited by the political parties in both the States through orchestrated campaigns and propaganda. The Kerala Congress, a regional party that has considerable influence among the settlers in the High Ranges, has been in the vanguard of various campaigns and agitations in Kerala on the Mullaiperiyar issue. Their leaders created fear and panic among the people through systematic propaganda based on sensational disclosures or surmises, very often distorting facts and realities. Naturally, the national parties in the State such as the Indian National Congress (INC), the Bharatiya Janata Party (BJP), and the Communist Party of India (Marxist) [CPI(M)], often more keen to safeguard their support base among the people of the region rather than work towards a solution, followed suit. The Kerala State Legislative Assembly, irrespective of whether the State was ruled by the Left Democratic Front (LDF) or the United Democratic Front (UDF), unanimously passed resolutions opposing the raising of the water level.

A similar situation prevails in Tamil Nadu. Though the All India Anna Dravida Munnetra Kazhagam (AIADMK) and the Dravida Munnetra Kazhagam (DMK) differed on issues such as the formation of Empowered Committee to study the dispute, or Centre’s intervention, both the parties are unanimous in their stand on the safety of the Dam or Kerala’s demand for the construction of a new dam. Tamil Nadu Chief Minister Jayalalithaa is categorical in her stand that the water level in the Dam would be raised to 152 feet after the completion of the strengthening works. Smaller parties like the Marumalarchi Dravida Munnetra Kazhagam (MDMK), Desiya Murpokku Dravidar Kazhagam (DMDK), and the Pattali Makkal Katchi (PMK), and the Dravidar Kazhagam (DK), also opposed Kerala’s stand on the issue. As in Kerala, the national parties in Tamil Nadu, such as the INC and the BJP, had no option but to toe the line of Dravidian parties.

Considering the larger interests of the people of Tamil Nadu and Kerala, an amicable solution to the Mullaiperiyar Dam issue is the need of the hour. The reality that the two States are interdependent in many areas should not be ignored. While Kerala depends much on Tamil Nadu with respect to the supply of vegetables, fruits, flowers, milk and dairy products, the latter considers Kerala as its most important market. The cooperation between the two States in the fields of tourism and pilgrimage has substantially contributed to their domestic economy. But the rigid and diametrically opposed stands taken by the two States make any resolution to this dispute difficult.

Of course, there are constitutional provisions such as Entry 56 in the Union List and Article 262 that empower Parliament to legislate over matters such as regulation and development of the inter-State rivers and valleys on grounds of larger public interest. The Inter-State Water Disputes Act, 1956, or the formation of Tribunals to deal with matters of conflict between States on water-sharing are some of the mechanisms available at hand for resolving such disputes. However, as documented by Justice (Retired) V. R. Krishna Iyer, former Supreme Court judge, in 1994 9 , these mechanisms have major bottlenecks in successfully settling major disputes. Sometimes, the conflicting States refuse to accept the decisions of the Tribunal leading to bigger disputes. In some other instances, court decisions were ignored, as had happened in the Mullaiperiyar issue when the Kerala Legislative Assembly adopted a legislation resulting in the non-enforcement of the Supreme Court verdict of 2006. Even the intervention of the Centre in serious disputes was unsuccessful due to the uncompromising and dominating attitude of the conflicting States. Another equally important aspect is the undue delay by the Tribunals in settling the disputes. A typical example is the Cauvery water dispute involving the States of Tamil Nadu, Karnataka, Kerala and Puducherry. The Tribunal set up in 1990 by an intervention of the Supreme Court gave its verdict in 2007, whereas Kerala and Tamil Nadu had been seeking relief from as early as the 1970s.

Need for alternative dispute resolution mechanisms

Therefore, alternative conflict resolution mechanisms are to be explored to work out an amicable solution. The Empowered Committee appointed by the Supreme Court discussed this aspect in its report. The first alternative suggested by the EC was the construction of a new dam by Kerala at its own expense after meeting all statutory requirements and fully honouring the rights of Tamil Nadu in the existing dam and its waters arising out of the Lease Deed of 1886 and the Agreements of 1970. The construction of this new dam, which may take eight to 10 years, may cost the exchequer more than Rs. 1,000 crore. In view of the likely impediments with respect to statutory clearances and costs, and, above all, the severe opposition from Tamil Nadu to the idea of a new dam, the above suggestion had limited scope for an amicable resolution.

Alternative proposals or suggestions need to be considered. A suggestion made by C.P. Roy, former chairman of Mullaiperiyar Agitation Council, to bring down the water level in the dam by digging a new tunnel much lower to the present one taking water to Tamil Nadu had some merit.

Firstly, this suggestion, to some extent, would help allay safety concerns on the dam arising out of the raising of water level. While high costs have always been a discouraging factor for the proposal to construct a new dam, Roy suggested digging a new tunnel which would cost only a few crores of rupees in contrast to the estimated Rs. 1000-odd crore for the new dam. The ecological and biodiversity concerns, including the likely hazards to the Periyar Tiger Reserve in the event of the construction of a new dam, could be effectively avoided. Another option that could be explored, Roy says, is the construction of several environment friendly mini-dams in full agreement with Tamil Nadu over the share of water to each partner. Meanwhile, as an interim measure, an international agency could be roped in to augment the safety of the existing dam using modern engineering/technical expertise after formally studying its safety issues. Such moves could meet the expectations of both States—safety for Kerala and water for Tamil Nadu.

Notes:

1. ^ Dam 999 is a 2011 science fiction disaster film in English directed by Sohan Roy, an Indian expatriate in UAE. The film is based on the award winning short documentary ‘DAMs - the Lethal Water Bombs’ and the Banqiao dam disaster of 1975 that claimed the lives of 250,000 people in China and anticipated calamity for outdated dams in the world. The film, which was screened in many states, including Kerala, in 2011, was banned in Tamil Nadu (http://www.damthemovie.com/).accessed on June 6, 2016)

2. ^ "The State of Kerala questioned the validity of the 1886 Lease Deed on the basis of Section 7 of the Indian Independence Act, 1947 which stated that’ As from the appointed day- (a) His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which, immediately before that day, were included in British India ; (b) the suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty existing at that date towards Indian States or the rulers thereof, and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise - , and (c) there lapse also any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise’ (www.legislation.gov.uk/ukpga/1947/30/pdfs/ukpga_19470030_en.pdf) [Last accessed: June 5, 2016.]

3. ^ Mullaiperiyar Environmental Protection Forum v. Union of India (UOI) and Others [AIR2006SC1428, 2006(2)SCALE680, (2006)3SCC643 dated 27.02.2006] [Last accessed on June 6, 2016].

4. ^ State of Tamil Nadu Vs. State of Kerala and another (OS No. 3 of 2006) of the Supreme Court of India (https://indiankanoon.org/doc/1649309/,accessed on June5, 2016).

5. ^ Exclusive: Mullaiperiyar dam was strengthened thrice and it's stronger than a new dam, says Justice K.T Thomas’, India Today, May11, 2014(www.indiatoday.intoday.in › India accessed on June 5, 2016).

6. ^ Dr. D.K. Paul and Dr. M.L. Sharma, Professors of IIT, Roorkee, in their report, concluded that both the Main Mullaiperiyar Dam and Baby Dam are likely to undergo damage that may lead to failure under static plus earthquake condition and therefore needs serious attention. Kerala strongly depends on this report in the matter of dam-safety Earthquake Engineering studies-Seismic stability of Mullaiperiyar composite dam. [Last accessed: June 5, 2016].

7. ^ Ibid sl iv, para 124.

8. ^ The Governor’s address in the opening session of Tamil Nadu Legislative Assembly in January, 2012. [Last accessed on June 6, 2016].

9. ^ Inter State Water Disputes in India: Institutions and Policies, Alan Richards & Nirvikar Singh, Department of Environmental Studies & Department of Economics, University of California, October, 2001





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