On 11.12.2011, ‘The Hindu’ carried a news item that Justice V.R.Krishnaiyer had, in a press conference, urged the Prime Minister to intervene in the Mullai Periyar Dam issue. Then we issued a rejoinder. A news paper has to remain neutral, when the matter is of utmost public importance, affecting two States, to publish the contrary view as well, on the same issue. Unfortunately ‘The Hindu’ did not publish our rejoinder.
As quoted in our rejoinder the
Supreme Court had held, on the same issue, in 2006 thus:-
“Regarding the issue as to the safety of
the dam on water level being raised to 142 ft. from the present level of 136
ft. the various reports have examined the safety angle in depth including the
view point of earth quake resistance. The apprehensions have been found to be
baseless. In fact, the report suggest an obstructionist attitude on the part of
State of Kerala.”
But Justice V.R.Krishna
Iyer, in the year 2011 had stated that “ the dam outlived its life span “ and
it was meant to last only for “ fifty
years” and the dam “is in a poor condition”. We said, in our rejoinder, ’’
The question of safety of the dam or the questions whether the dam has outlived
its life or the question of its geological conditions are factual matters which
can be decided only by experts in the field ” and
concluded “ In these circumstances it is wise to let the law take its own
course. ................Further, it is
not proper to express any opinion on merits on the issues pending adjudication
before courts”.
Now
the five Member Empowered Committee has given its report . It has found that the
dam is safe and strong and there is no need to construct a new dam. The Hindu, though has not published the contents of the
report so far, has carried a news item
on 7-5-2012, that ” Justice V.R.Krishna Iyer flays Empowered Committee
Report” on the dam safety and has come down
heavily on the committee saying “judges cannot give their opinion on
technical issues such as the safety of the old dam” since” judges are
not specialists” in dam engineering and the opinion have no more
validity than a layman” and also suggested that the “Supreme
Court draft regulations should be given
to Engineers”. He goes further to state “ foreign engineers and experts
could be consulted...... After all these the collective opinion should be
presented to people and Parliament. Their verdict should ultimately be examined
by the Supreme Court”. And the present committee report can be the basis of
such exhaustive process.”
Any person with reasonable under
standing can see the inconsistency writ
large on the face of the above statement.
Justice VRK was not a technical expert when he said the life span of the
dam was just 50 years and the dam has become weak. Hence that ‘opinion have no
more validity than a layman’ It is good
that Justice VRK has now accepted what we said in our rejoinder that it is for
the technical experts to give opinion on the strength of the dam.
The earlier judgment of the Supreme
Court on the Mullaiperiyar Dam issue was also based on Technical Experts
Opinion. The Empowered Committee consisted of Technical Experts besides they
have taken into account number of independent evaluation of the safety of Dam.
The constitution of Empowered Committee was not questioned by the Kerala Govt.
while Tamil Nadu Govt. objected to it on the ground that there is already
experts’ reports. However after having participated before the committee and finding
that it does not suit them now to say that the Report is not acceptable is most
unfair and can not be expected of any reasonable entity. On the contrary against all cannons of
established law justice VRK now propounds a strange proposition of law that the
opinion of an expert should be placed before the people and the Parliament and
also before foreign experts and only thereafter before the Supreme Court for
its decision.
It is to be remembered that the Supreme Court
has held repeatedly that a foreign academic degree or qualification cannot be
considered superior in any aspect to a corresponding Indian degree; and on that
basis no preference can be given to foreign qualifications. As early as 1974-5 Justice VRK himself has
held “ The outmoded 15th century Anglo Saxon jurisprudence, that the
Courts cannot make law ” is no more a good law. He as a judge of the Supreme
Court has said that Courts can even make laws, whenever and wherever necessary.
Now he says that the opinion of an expert should be placed before the “people”
and then before Parliament and only thereafter it can be placed before the
Supreme Court. These are the days when Central Government, on certain matters,
seek the permission of the Supreme Court before taking a decision. Such
statements would only give credence to the false propaganda. Eminent persons
must advise people to face facts.
In
fact we have entered into this dialogue, since we hold Justice VRK hold in high
esteem and his erroneous views should not go on record.
Chennai
Justice P.
Shanmugam and
11th
May 2012 Justice
A.K.Rajan
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