Judicial Escapism?

It is said an exponent of Vedas was giving a serial-lecture narrating the epic story of ‘Mahabharat’ and local people were also attending sessions in late evenings everyday and listening the story with keen interest. The story was reaching climax stage and the people in the audience were eagerly awaiting the outcome of Mahabharat war between Pandavas and Gauravas. Who will ultimately emerge triumphant – Pandavas or Gauravas? – was the nagging question in the minds of people attending the discourse for over a month.

There were only few more days for the story to come to an end, when suddenly on a day, a VIP of the area who had arranged the programme and financing it, arrived at the venue. Resenting that he did not have the opportunity to listen to the story from the beginning, he said that it would be better if the story is again told from the beginning for his sake.

Immediately the Vedic exponent willingly obliged him and started narrating the story of Mahabharat from the beginning; but the people were disheartened. Thus, in various similar contexts, rural folks jocularly say, “Adiyaippididaa Bharata Batta’, meaning, “Tell the story of Mahabharat from the beginning: you Bhatta.”

Similarly, the people of Tamil Nadu were eagerly awaiting the Supreme Court judgement in the Mullaiperiyar dam case between Tamil Nadu and Kerala, protracting for years now. But instead of pronouncing its final verdict, the Apex Court on February 18, gave a new twist to the case, constituting a ‘high-level empowered committee’ to go into all issues, including the safety aspects of the dam, raising the water level beyond 136 ft as also Kerala’s demand for a new dam. The five-judge Constitution Bench comprising Justices D.K.Jain, B.Sudharshan Reddy, Mukundakam Sharma, R.M.Lodha and Deepak Verma said, the five-member committee to be headed by a Supreme Court Judge (Justice A.S.Anand, nominated later) would have two technical experts not connected with the dispute. They will be appointed by the Centre. Tamil Nadu and Kerala would have the option to nominate a member each who could be either a retired judge or a technical expert.

The Bench had said Tamil Nadu, Kerala and Centre could raise all issues before the committee, which should submit its report in six months. The Bench made it clear that after the receipt of the report, it would consider the legal and constitutional issues, including the validity of the Kerala law. Striking an optimistic note, Justice Jain had told counsel for parties, “Let us see whether constitution of the committee can solve the problem and buy peace between two States.” In the same breath, the draft order notes the fundamentally diametrical stand taken by the two states stating, “Apart from legal and constitutional issues, it appears to us (court) the real concern of the State of Tamil Nadu relates to the potential problem where the level of water in the dam could not be raised to 142 ft. The concern of the State of Kerala, on the other hand, appears to be relating to the safety of the dam, while Tamil Nadu has submitted that in the present suit they seek an invalidation of the Kerala Irrigation and Water Conservation (Amendment) Act, 2006, that seeks to override the Supreme Court judgement in the previous case, Kerala has submitted that there are genuine concerns on the safety of this dam and that they have also offered to build a new dam at their cost which will ensure that there is no fall in the water drawals of Tamil Nadu and that their law is valid.”

Understandably, the appointment of yet another committee in the dam case had been hailed and welcomed by Kerala Chief Minister V.S.Achuthanandan and Water Resources Minister N.K.Premachandran saying that the State could advance its position in the case filed by Tamil Nadu before the Supreme Court. The CM had said the court order meant reopening of the 2006 verdict in favour of Tamil Nadu, for reconsideration. The court had upheld the State’s argument that the Central Water Commission could not be represented in the committee. The Minister had said the State could decide on its representative in the committee depending on the nomination being made by TN. If TN was nominating a person with a judicial background, Kerala would also do so. If TN preferred a technical hand, Kerala would follow on it. (What will they do now after the DMK government in TN had decided not at all to nominate its member to the committee?)

It is very sad that the court had failed to distinguish between the very much existing potential problem for TN where the level of water in the dam could not be restored to the original levels of 142 ft and 152 ft as per agreement and the perceived apprehension of Kerala over the safety of the dam structure, which itself was the creation of the political establishment in the State. Way back in the later 1970s, political leadership of the then ruling dispensation in connivance with the political leadership of the opposition, ‘planted’ a story in a popular Malayalam daily on the possible threat to the safety of the dam resulting in huge loss of lives and properties in few downstream districts, and from then onwards conducted a sustained false campaign whipping up fear psychosis among the people of the State. (The story containing the details of events and names of the players involved in this sordid episode was published in our issue dated 21-01-07). That is why we witness a perfect co-ordination between the two alliances – the LDF and UDF – alternatively ruling in that State in their hostile attitude towards the interests of Tamil Nadu, in quite contrast to the situation in our State.  For instance, the present Act of 2006, virtually nullifying the Supreme Court order on 22.2.2006, which had been challenged by TN was moved by the previous UDF Ministry led by former CM Oomman Chandy and adopted unanimously in the Assembly. The present LDF Ministry led by the rival Chief Minister V.S.Achuthanandan pursue the case against the disputed Act with the same zeal.

The question now is whether there is any need for setting up of yet another panel to study the strength of the dam? Already, a committee formed under the leadership of the Chairman of the Central Water Resources Commission K.C. Thomas, and one more seven-member experts committee constituted by the Union government on the directive of the Supreme Court headed by the then Union Water Resources Committee chairman P.K.Mittal and consisting of two Central Chief Engineers, the Chairman of Madhya Pradesh State Dam Safety Commission, retired Chief Engineer of UP State and a representative each from Tamil Nadu and Kerala. This seven-member committee conducted studies on the strength of the dam for over an year and submitted its findings stating the dam structure was strong enough and recommended raising the level of water from 136 ft to 142 ft. The report was unanimously made by six of the seven members and the dissenting note was given by none other than the representative of Kerala. All the 12 issues raised by Kerala were rejected as baseless. The Geological Survey of India experts also confirmed the strength and safety of the dam after their studies. The Union government on 19.1.2002 filed a report before the Supreme Court explaining its stand that it was accepting the report of the seven-member panel and affirming that no damage would be caused to the dam by raising the water level from 136 ft to 142 ft.

After over 10 years of protracted litigation, the Supreme Court finally delivered its judgement on February 2006, permitting the raising of level of water from 136 ft to 142 ft and the Tamil Nadu government carried out repair works in the main and baby dams at a cost of Rs.24 crore as directed by the court. But within few days the Kerala Assembly adopted the impugned Act, overriding the Supreme Court order. The Jayalalitha regime then just filed a petition for a civil suit on 31.3.2006 and did not even care to get it numbered for hearing. It was only after the DMK took over office in the State, the case challenging the constitutional validity was taken up for hearing. During the entire courses of hearing since then, Kerala had been adopting diversionary and delaying tactics. When Kerala defended the validity of its legislation, the Judges of the Bench, during the course of hearing, pulled up the Kerala counsel and put several questions which could not be answered. But after hearing both sides, the court wanted to know whether a committee could be formed to examine the whole issue. Tamil Nadu rejected the suggestion, but Kerala welcomed it. However, the court on February 17, 2010 had proceeded to constitute to the ‘empowered’ committee under the Constitution.

The DMK General Council in its meeting on February 20, adopted a resolution stating that while the Party did not oppose the move, but it was in no position to accept the Supreme Court’s direction. The move amounts to deflecting the direction of the case filed by Tamil Nadu (challenging the validity of the Kerala Act) in the SC and creating an impression in favour of the impugned legislation ignoring the Court’s February 2006 order permitting TN to raise the water level in the dam initially from 136 ft to 142 ft. The General Council strongly believed that there was no need for the TN government’s nominee to be present in the five-member committee to reiterate truth, which had been brought out by the seven-member Mittal Committee and the Supreme Court itself on the issue.

In his concluding remarks at the General Council, Kalaignar spent much time on explaining why the Party had advocated abstaining from the committee. He expressed confidence that all parties would agree to the decision. Non-participation in the panel would not affect TN’s interests, he said noting there was already a verdict ascertaining the safety and strength of the dam. At times, abstinence is more vocal than presence and argument.

In the context of the Supreme Court once again constituting a committee to study afresh ‘all’ issues relating to the Mullaiperiyar dam case, the right thinking and law abiding people of the country are left with the following questions persisting in their minds:

Will not this decision amount to reversing the wheels of history back to thirty and odd years and reopening issues which had already been discussed in length and decisions arrived at, rendering meaningless all the proceedings of the courts so far?

If the committee constituted now is constitutionally empowered and their reports binding, are not the Supreme Court and its Benches constitutionally empowered and their verdicts binding on contending parties?

The courts take suo motu notice of disobedience of their verdicts and orders by bureaucrats and police personnel, initiate contempt of court proceedings and award punishments on the latter. What contempt proceedings were initiated against Kerala for non-implementation of its order of February 2006 in this case and against Karnataka for not carrying out the orders of the court and Tribunal in the Cauvery water case?

Due to the presence of all-India political parties in both states to an inter-state dispute, the political leadership of the Centre unable and hesitant to take a fair and firm stand, is understandable. But is not the attitude of the Apex court, which is expected to go strictly by the letters of law and Constitution, dragging out solution for such issues, nothing but judicial escapism?           r