JOIN USThe Supreme Court, in its ruling on the Mullaperiyar dam dispute between Kerala and Tamil Nadu, has laid down two principles which will guide decisions on similar inter-state disputes in future.
The two principles are well-known in law but they needed to be reiterated by a constitution bench. They are relevant not only in addressing water disputes but disagreements over other issues and sharing of resources. One principle that the court upheld is that agreements between two parties and entities do not become invalid because of their antiquity or because they were entered into before the Constitution came into being.
Kerala had disputed the validity of a lease agreement between the Maharaja of Travancore and the Madras presidency, based on which the Mullaperiayar dam was built in 1895. The court has stated that the successor entities are legally bound by the agreement. However, if there is a new situation or circumstances which warrant changes or abrogation, the states can renegotiate it and reach a bilateral agreement. A unilateral repudiation is wrong.
The second principle is that states cannot undo a court judgment with the help of legislation. The Supreme Court had in 2006 allowed Tamil Nadu to raise the water level in the dam from 136 ft to 142 ft. But the Kerala assembly passed a law to circumvent this ruling and to prevent Tamil Nadu from doing so, arguing that it would affect the safety of the dam.
The court has now struck down the Kerala law because it felt it was meant only to nullify its ruling and so usurped judicial power. It has ruled that the law went against the separation powers among the judiciary, the executive and the legislature. Kerala’s argument that the dam was not strong enough to hold water above 136 ft was not very convincing too. Extensive and thorough studies made by experts had found that the structure of the dam is safe in every respect.
The dam is in Kerala’s territory but was built by the then Madras government and is now maintained by Tamil Nadu. Most of the water is used for irrigation in Tamil Nadu. Kerala perhaps wanted to have better control of the dam and so unconvincingly raised the issues of the validity of the agreement and the safety of the dam. There are some options which will address Kerala’s concerns and they can still be pursued within the framework of the agreement and the court’s ruling.