Mullaperiyar Dam Issue: Background

Mullaperiyar Dam is located on the Periyar River in Kerala. In 1886, a lease was made between the Maharaja of Travancore {a Princely state} and Secretary of State for India {Lord Kimberley} for Periyar Irrigation works. This lease was for 999 years and it granted full right to make and carry out any construction on the leased land to Secretary of State for India.

As per the lease, Mullaperiyar Dam was constructed during 1887-1895 across Periyar River in the then Travancore state (now Kerala) territory. The Dam provides for diversion of water from the reservoir through a tunnel to Vaigai basin in Tamil Nadu for irrigation benefits in 68558 ha. But this is only with full reservoir level of 152 ft.

The Dam is operated by state of Tamil Nadu. By another agreement in 1970; Tamil Nadu was permitted to generate power also. The controversy began over safety of the dam in 1979, after a report was published in the media (Kerala Press) about damage to the dam.

The Central Water Commission (CWC) held some meetings between the authorities of both the states to decide long term measures to strengthen the Periyar Dam.  One of the measures was to keep the shutters of the spill way fully to lower the reservoir level to 136 Ft. However, in later meeting it was decided that once the emergency and medium term measures are completed the water level may be raised up to 145 ft.

It was proposed that after the completion of the emergency, medium and long term strengthening measures, provision of other additional vents and implementation of other suggestions, Periyar dam would be competent to hold water up to FRL of 152 ft. Some of the works suggested by the CWC were completed by the Tamil Nadu Government in 1986.

However, raising the level of water became an issue and several petitions were filed in the Kerala and Tamil Nadu High Courts. These cases were transferred to the Supreme Court and in 2000, Supreme Court asked the Minister of water resources to convene a meeting of Chief Ministers.

The Interstate meeting decided to set up an expert committee in which representatives of both the sates were included to advise on the issue of safety of the dam and on the issue of raising water level more than 136 ft.

This committee recommended that once the Preliminary strengthening measures are implemented the water level would be raised to 142 ft and after the balanced measures are implemented the water level may be raised to 152 ft.

On the basis of these recommendations, the Supreme Court gave orders in 2006 to raise the water level of the dam to 142 ft and the Government of Tamil Nadu was also ordered to complete the strengthening measures.

However, in the same year the Kerala Government passed the Kerala Irrigation & water Conservation (Amendment) Act 2006 and this act placed the Mullaperiyar dam in the list of “Endangered dams” and prohibited the raising of water level beyond 136 ft.

This was followed by a suit by state Government of Tamil Nadu against the state Government of Kerala. The suit prays for:

• Declaration of Kerala Irrigation and Water Conservation (Amendment) Act 2006 passed by Kerala Legislature as unconstitutional.
• Pass a decree of permanent injection restraining Kerala from application and enforcing impugned legislation enforcing with or obstructing Tamil Nadu from increasing the water level to 142 feet and from carrying out the repair works as per judgment of Supreme Court dated 27th February 2006.

In 2006, the Supreme Court of India passed the order that “the two State Governments independently or with the intervention of the Union of India may try to sort out, if possible, the dispute”.

Subsequently, the Union interfered and some meeting was convened between the state governments. Later, a five-member Empowered Committee was constituted by the Supreme Court to go into the safety of the Mullaperiyar dam. The committee was mandated to make an on-the-spot inspection of the dam and report within six months.

However, on 8 March 2010, Tamil Nadu government informed the Supreme Court that it does not want to adjudicate the dispute with Kerala before the specially constituted empowered committee. But, the Supreme Court turned down Tamil Nadu’s request and went forward to constitute the empowered committee.

The empowered committee comprised of former Chief Justice of India A.S. Anand; Justice K.T. Thomas, retired Supreme Court Judge representing Kerala; Justice A.R. Lakshmanan, retired Supreme Court Judge representing Tamil Nadu; former Secretary to the Ministry of Water Resources C.D. Thatte and retired Chief Engineer, Central Water Commission, D.K. Mehta.

The committee had framed certain issues and had sought responses from both the States in two weeks. Initially, the committee inspected the dam from the Tamil Nadu side and then from the Kerala side. It made use of latest techniques to assess the strength and safety of the dam as primary concern was to ensure the dam’s safety. The committee had also got another six months extension to submit its report.

The empowered committee submitted its report to the Supreme Court on April 2013. It concluded that the existing structure was hydrologically, structurally and seismically safe and that there was no need for construction of a new dam as proposed by the state of Kerala. The panel also found that the seismic activity near the dam area had no consequences to the dam’s safety. It had also allowed increasing the water level of the dam from 136 ft to 142 ft. But it recommended the constitution of independent expert committee if the water level needs to be raised beyond 142 ft.

The panel in its report had suggested two alternatives:

• First alternative was that the state of Kerala may be allowed to construct a new dam without dismantling, demolishing or decommissioning the existing dam until the new Dam becomes operational.
• The second alternative was to repair, strengthen/restore the existing dam.

Current Status

In May 2014, a Constitution Bench consisting of 5 judges of Supreme Court delivered a judgment allowing the water level in the dam to be increased from 136 ft to 142 ft. It also struck down Kerala Irrigation Water Conservation Act, 2006 and declared it as void. It also held that in such disputes one state legislature cannot unilaterally enact law in its own favor.

Subsequently in June 2014, as per the directions of the Supreme Court the Central government constituted a three member committee to supervise this water rising.

In response to the Supreme Court judgment, the state government of Kerala filed a review petition in the Supreme Court which was  subsequently dismissed by the Supreme Court on 2^nd December, 2014.

Meanwhile, the water level in Mullaperiyar Dam had touched 142 ft in November 2014 after a gap of 35 years.

The Tamil Nadu government’s plea that the dam be secured by Central Industrial Security Force (CISF)  due to the obstruction caused by Kerala to the management of the dam by Tamil Nadu government employees came up for hearing in the Supreme court on February 2015. However, in April 2016, the Tamil Nadu government withdrew its plea after Supreme Court objected to filing of such pleas in already settled cases.

Stands taken by both the states

Tamil Nadu

The state considers the Mullaiperiyar dam and the diverted Periyar waters to be the life line for its drought prone districts (Theni, Ramnad, Madurai and Sivaganga), as these districts fall under the rain shadow region. The water from the dam is extensively by the state for irrigation, drinking and also for generation of power in Lower Periyar Power Station. It insists on increasing the water level to 142 feet citing crop failures due to insufficient availability of water. Also, the state wants to exercise its unfettered rights to control and manage the dam based on the 1886 lease agreement.

Kerala

Kerala feels that the 1886 lease agreement was unfair and has time and again challenged the validity of the agreement. It is concerned about the safety of the 116 year old dam. It feels in the event of dam collapse it would damage its Idukki dam (Idduki is the largest source of hydroelectricity in Kerala) down the course and also damage Periyar National Park and Periyar Tiger Reserve apart from putting the life and property of nearly 4 million people downstream in danger.

Questions & Answers

What is the Constitutional Position of Water in India?

Various articles that pertain to water in constitution of India are (1) 7th schedule, 11th schedule and 12th schedule (2) Article 262. Apart from that, articles 131, 136 and 143(1) have also been used in matters related to water. Here is a brief description about them:

7th Schedule

In 7th schedule, entry 17 of the state list and entry 56 of the union list pertain to water. Entry 17 of state list makes water a “state subject”. It says: “Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.”

Entry 56 of the Union List allows the Union Government to regulate the waters of inter-state rivers and river valleys. It reads: “Regulation and development of inter- state rivers and river valleys to the extent to which such regulation and development under the control of the Union, is declared by Parliament by law to be expedient in the public interest“.

Article 262

Apart from that, article 262 reads that (1) Parliament may by law provide for the adjudication on any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter- state river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other Court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

Thus, Union has important role to play in solving disputes among the riparian states. On the basis of powers given by Article 262, union enacted Interstate River Water Disputes Act, 1956 (IRWD Act) to resolve the water disputes that would arise in the use, control and distribution of an interstate river or river valley. This act has been from time to time amended.

11th Schedule

11th schedule is a list of Panchayat subjects as added to constitution via the 73rd amendment. It includes ”Minor irrigation, Water management and Watershed development”, “drinking water” and “maintenance of community assets” as subjects to be under Panchayats.

12th Schedule

Twelfth Schedule (Part IX A) was added via 74th amendment and deals with subjects of municipalities. It includes “water supply of domestic, industrial and commercial purposes” is listed.

The importance of 11th and 12th schedules is that they provide functional responsibilities to the local Governments in respect of several aspects of water use.

Article 131, 136 and 143(1)

These three articles have nothing to do with water but their provisions have important implications for water related issues. Article 131 defines the original jurisdiction of the constitution. Article 136 defines the Special Leave Petition for Supreme Court. It says that on its discretion, the Supreme Court

136. Special leave to appeal by the Supreme Court can grant special leave to appeal from any judgement, decree, sentence or order passed by any court or tribunal {except those of armed forces} in the territory of India. Since Article 262 bars Supreme Court and high courts to determine the cases related to inter-state water disputes, article 136 has been frequently used by states to obviate the bar and file petition on riparian disputes also with Supreme Court.

Why water has been put in state domain while there are frequent disputes between riparian states?

Water is a state subject mainly due to the British era enactments, particularly, the constitutional scheme provided by the GOI Act 1935. This law gave states exclusive power to regulate water supplies, irrigation, canals, drainage, embankments, water storage, hydropower and fisheries. The constitution placed inter-state river matters with union government via article 262.  Further, Union is entitled to legislate on certain issues such as shipping, navigation {National Waterways}, regulation of tidal waters and territorial waters.

Thus, saying that water is in state domain is oversimplification of the topic. The entry 17 of state list is subject to entry 56 of union list which is basically an enabling clause allow Union to deal with inter-State rivers if Parliament legislates for the purpose. This implies that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river should be “under the control of the Union”; it can enact a law to that effect. This would give the union legislative and executive powers over that river. Nevertheless, there is a lack of an umbrella framework to regulate freshwater in all its dimensions. The current framework is marked by coexistence of a number of different principles, rules and acts adopted over many decades.

Are there any inter-state river disputes solved amicably between states?

Yes, there are. Success has been achieved in resolving the disputes by negotiations in the past and about 125 agreements have been reached between the basin States. Further, the Government of India has also declared 14 water resources projects as ‘National Projects’ to increase irrigated area in the country and to harness hydropower potential.

Should Water be in concurrent list? Is it feasible to move water to concurrent list?

The central government {ministry of water resources} has long asked for a shift of water from state to concurrent list.  The key arguments to support this shift are as follows:

• The Inter-state river disputes have been a long and vexed problem in India.
• It appears that the framers of constitution considered water as the irrigation and river waters. However, the subject is much more larger and includes ponds, lakes, springs, ground water, dams, glaciers, soil and atmospheric water, wetlands etc. It seems that at the time of framing the constitution, the environmental, ecological, social and rights concerns were not as sharp as they are today. If it was so, the entries related to water would have been different. For instance, the rapid depletion of ground water occurred only after Green Revolution period and this is the reason that there is no explicit reference in constitution regarding ground water or aquifers. Thus, the makers of the constitution had not anticipated water crisis which would loom large half a century later.
• The water crisis demands a greater responsibility on centre’s part. It demands national initiatives.

Thus, water needs to be in concurrent list in view of the water crisis looming large and greater role to be played on national level. The counter arguments include – it would lead to centralization of water; it would impact the federal framework etc. These arguments have placed practical and political difficulties for shifting water to concurrent list. Nevertheless, the Union using powers of Article 262 and Entry 56 of the Union List has enacted Interstate Dispute Act 1956 and River Boards Act 1856.

What are River Boards? How Many River Boards exists in India currently?

Using powers of Entry 56 of Union List, the Government of India enacted the River Boards Act 1956. The River Boards Act envisages setting up of River Boards for Inter-state river basins to advise the State Governments in planning and development of interstate rivers. So far, no river board has been established under this act. However, some River Boards, Commissions, Authorities have been constituted through Government resolution, executive orders or Acts based upon interstate agreements, state reorganization acts and award of tribunal such as Betwa River Board, Bansagar Control Board, Tungabhadra Board, Narmada Control Authority, Bhakra Beas Management Board and Upper Yamuna River Board.