Need to recognise light at the end of the tunnel

Kerala Chief Minister V D Satheesan recently stated that a new dam at Mullaperiyar alone can resolve the state’s safety concerns over the age-old structure. He was only reiterating the public stance taken by previous Kerala governments. The state of Tamil Nadu, on the other hand, has been opposing the proposal throughout.

The idea may be found unfeasible even on the grounds of ecology, economy or practicality. Let it be assumed that the gravity masonry dam poses a potential threat to Keralites on account of its age and fragility. Just because some earlier expert bodies had confirmed the dam’s safety, it may not stand as an eternal guarantee. Yet, if a new dam is to be constructed for that reason alone, it might result in a technological fallacy.

Given that the average life-span of such a dam is considered to be about 100 years, Kerala would need to construct new dams at such gaps in the time to come. This will have to be done at an ecologically-sensitive area in the Periyar wildlife sanctuary. Environmental clearance for such a project would be extremely difficult. “No more dams” and “Damn the dams” were the slogans of environmental movements across the world towards the end of the last century. Ecologist Patrick McCully’s classic work, Silenced Rivers: The Ecology and Politics of Large Dams, shows the devastating impact of large dams.

Now, Kerala is willing to supply water to Tamil Nadu. Tamil Nadu, for itself, does not want to perpetuate any threat to its neighbour. These positions of the respective governments are in the public domain. Given this, it should not be difficult to swiftly resolve the interstate dispute over the dam and the water level, provided that the Chief Ministers of the states, along with their governments, act in a statesmanlike manner.

The Supreme Court’s judgement regarding the Mullaperiyar dam in Tamil Nadu vs Kerala (2014) is significant. This was an original suit filed by Tamil Nadu under Article 131 of the Constitution challenging the amendment brought in by the Kerala legislature by way of Irrigation and Water Conservation (Amendment) Act, 2006. This law fixed the dam’s water level at a height of 136 feet, reasoning that a higher level would run the risk of endangering the dam and, consequently, the people in Kerala.

Tamil Nadu contended that this unilateral fixation of height by way of legislation goes against the earlier Supreme Court judgement in its favour in 2006. The 2006 law also empowered the authority designed by it to suspend or restrict the functioning of the dam or even to decommission it. Tamil Nadu contended that it was a “legislative judgement” that overturned the Supreme Court’s 2006 judgement that held that a water level up to 142 feet is safe.

In the 2014 judgement, the Supreme Court declared that the law passed by Kerala is unconstitutional. The state was restrained from invoking the law to interfere with any of the rights conferred on Tamil Nadu regarding the dam. The Supreme Court, however, constituted a committee chaired by a representative of the Central Water Commission and consisting of one representative each from Tamil Nadu and Kerala. This was done to address Kerala’s concerns over dam safety.

The Supreme Court, in this judgement, did something more. It said that “any amicable resolution of the present dispute between the two states would have been really good for the people of these states but this has not been possible as the two states have sharp conflict over the subject matter and their stance is rigid, inflexible and hard”. In essence, the judgement was an appeal to future statesmanship on both sides and this could turn out as a judicial prescription of solution based on the expert committee’s recommendation.

In paragraph 214 of the judgement, the court suggested a complete solution to the Mullaperiyar issue—one that would address the safety concerns of Keralites on the one hand and fulfil Tamil Nadu’s need for the water on the other. The court laid out a formula: “Digging of a new tunnel, at say, 50 feet (from earth level), of course after conducting surveys, designs and techno-economic feasibility studies, with requisite sluice gates for evacuation of reservoir water from 106.5 feet to say 50 feet (from earth level)”. It went on: “The water flow from the new tunnel can be used for power generation or for any other purpose by making changes in the existing infrastructure.”

The court expected that studies along this line would be undertaken within a specified time. It also underlined the advantage of the ‘tunnel solution’, saying that Tamil Nadu would then be able to use the water available between the heights of 106 feet and 50 feet, which remains unused. This solution would eradicate the “fear perception” among the people of Kerala as the new tunnel would “help evacuation of storage faster and better in case the dam develops any distress”.

The court noted that a new tunnel would not cost even a small fraction of the money required to build a new dam. The possibility for corruption in a mega dam construction also will be curbed with the tunnel solution.

Kerala has a history of generosity, as it was never reluctant to provide Mullaperiyar water to Tamil Nadu. Tamil Nadu is a land of great civilisation that can help its neighbour remove its fear regarding a dam constructed over 130 years ago. Tamil Nadu has a new Chief Minister who need not be burdened with the rhetoric on the issue associated with previous regimes. So is the case with Kerala’s new Chief Minister, who too is not burdened by perceptions of the past.

The time has come to settle the Mullaperiyar issue once and for all. Experts in Kerala like E Sreedharan, C P Roy and C R Neelakandan have publicly shared their support for the tunnel solution. Tamil Nadu, too, can invoke its expertise in materialising the historic tunnel. This column is a sincere appeal to both the Chief Ministers and their governments, and to the people of both states, to resolve the issue with the tunnel. At the end of it is light for all concerned.

Kaleeswaram Raj | Lawyer, Supreme Court of India

(Views are personal)

(kaleeswaramraj@gmail.com)