SC order dashes TN's hopes of early verdict in dam dispute

CHENNAI: The Supreme Court's decision to refer the Mullaperiyar dam row to a Constitution Bench has dampened Tamil Nadu's immediate hopes of getting Kerala's legislation seeking to limit the storage level of the dam to 136 feet invalidated. At the same time, by ordering that status quo be maintained, the apex court has ensured that the level would remain at 136 feet as at present until the final disposal of the matter, besides giving Kerala the opportunity to complete its survey for a proposed new dam.
The consoling factor for Tamil Nadu is that the court has allowed repair and maintenance work to continue without hindrance and impliedly stalled any plan to construct a new dam for the present. The Centre is unlikely to clear the building of a new structure to replace the present one that Kerala argues is unsafe in view of the pendency of the case.
The Tamil Nadu government is likely to draw flak from the opposition over the latest development. P Nedumaran, convener of a forum for retrieval of rights relating to Mullaperiyar has already expressed shock over the matter being sent to a Constitution Bench and questioned how lawyers for Tamil Nadu could agree to the reference after an initial objection.
From the sequence of events, it is clear that the constitutional questions were raised by Kerala after both sides had advanced lengthy arguments for and against the validity of Kerala's amendment aimed at nullifying the effect of the February 2006 order permitting raising of the storage level from 136 feet to 142 feet and restraining Kerala from hindering strengthening works.
It was after being cornered on why the state was not accepting the earlier findings of the Supreme Court and why it was arguing that these findings were not binding on it that counsel for Kerala came up with the contention that the February 2006 verdict of the apex court was wholly without jurisdiction, and that such a judgement was not binding. Relying on the fact that the earlier order was on a writ petition under Article 32 of the Constitution, Kerala argued that a finding on facts such as dam safety could not have been rendered except under a suit under Article 131, which confers jurisdiction on the apex court to hear disputes between states.
Kerala has convinced the Supreme Court that several other constitutional issues are involved and, in the process, the Constitution Bench may have to revisit constitutional issues settled by the 2006 order. For instance, the reference includes questions related to Article 363 (which bars jurisdiction of courts in disputes arising out of pre-Constitution agreements), Articles 3 and 4 (which deal with creation of new states) and Article 246 (which divides legislative powers into Union, State and Concurrent lists). Three years ago, the court had rejected the contention that Article 363 prohibits the court from adjudicating the issue, saying the Mullaperiyar agreement of 1886 was merely a lease deal and not a substantive treaty between colonial and princely rulers. Tamil Nadu had hoped that its argument that the verdict of 2006 would bind Kerala and it could not revive judicially settled issues would render the legislation invalid. Further, it had hoped to succeed on the point that the Kerala assembly lacked legislative competence to pass a law that had ramifications outside the state.
Going by past experience, and the sheer number of cases pending before benches of five and more judges, the Mullaperiyar matter is unlikely to reach judicial finality for several years. Whether the status quo would cause more friction or ease tension between the states remains to be seen. EOM