THE MULLAPERIYAR INTER-BASIN WATER TRANSFER,

WATER CONFLICTS, AND DAM SAFETY

INTRODUCTION

“When The Well Is Dry, We Shall Know the Value of Water”

- Benjamin Franklin

With close to 1.25 billion people in India, ensuring access to potable water is the biggest
challenge facing this country both in terms of spread and severity. This imbalance can be
gauged from the fact that even though India has more than 17% of the world’s
population, it has only 4% of the world’s renewable water resources and 2.6% of the
world’s land area.1 The increasing population and competing demand for land has
resulted in a significant decline in per-capita water availability between 1951 and 2001.2
Compounding the problem is the water's uneven distribution over time and space. Rather
than a necessity, water has become more or less a luxury in India. Urban India is
screaming for water.3 The situation in rural India is much worse since groundwater levels
have plummeted in 206 of the 593 districts.4 The quality of the water is also very poor.
Sixty six million people in two hundred districts risk fluoride contamination while 15
million people risk arsenic contamination.5 India has 100 million cases of diarrhea every
year and five lakh children die of the disease.6 Decreasing supplies and poor water
quality implies that disputes over water are plentiful in this country.

Tony George Puthucherril, LL.M. (Kerala University), LL.M. (Schulich Law School), M.Phil (Water Law,
NUJS). Presently JSD candidate and Vanier Canada Graduate Scholar, Marine and Environmental Law
Institute, Dalhousie University. The author can be contacted at tonygeorge00@gmail.com.
1
Gov't of India, Ministry of Water Resources, Draft National Water Policy (2012) [Draft National Water
Policy].
2
See generally Ministry of Environment and Forests, Sustainable Development in India: Stocktaking in the
Run Up To Rio+20 (TERI, 2011).
3
For instance, in Bangalore, water is rationed twice a week, 250 tankers make 2,250 trips to quench
Chennai’s thirst, in Hyderabad some areas get water once in three days while in Delhi certain areas get
water only for fifteen minutes a day. Tony George Puthucherril & Lekshmi Vijayabalan, “The Law of
Water Rights in India” The Academy Law Review, Vol. 28:1 & 2(2004) 72.
4
Id.
5
Id.
6
Id.

1
 Water sharing disputes in the Indians subcontinent are not new. More than two
thousand years ago, the Sakia and Kolia Kings are said to have waged a war regarding
sharing of the waters of the River Rohini, turning it into a river of blood. It was Lord
Buddha who finally brought the two sides together to end the long drawn dispute.7 After
independence and the drawing of boundaries on a linguistic basis, fourteen major and
forty-four medium rivers flow through the boundary of more than one state.8
Undoubtedly, the water flowing through a state is a precious asset for the concerned state.
In a federal compact, the fundamental understanding is that interstate river waters cannot
be monopolised by an upper riparian state. Even though they do have a vital interest in
the waters, they are bound by a responsibility to use it with minimum detriment to other
states. And even though a state can physically cut off all the waters from flowing into
neighbouring states, exercise of such a power to the detriment of lower states is
considered unjust.9
In the same vein, a lower state cannot compel an upper state to give up its claims
over all the waters that flow through its territory. It is to harmonise such conflicting
claims and to ensure an undiminished supply of water to the lower riparians that the law
steps in with its equity principle of water sharing which presupposes that all riparian
claimants are equal right holders and that the resource has to be apportioned fairly in
accordance with their individual needs.10 However, exercise of usufructuary rights by the
concerned states in an unreasonable way has triggered numerous river water disputes
generating bad blood between states, which is further compounded by unwarranted
politicisation. The fracas between states reach such idiosyncratic heights in the event of a
monsoon failure that threaten the stability of the federal structure to say the least.
The present century is one not limited solely to space exploration and genetic
engineering, but it is also an era of contestation and conflicts over large dams. As of the
year 2000, it was estimated that nearly forty-five thousand large dams had been

7
See generally DODDA SRINIVASA RAO, INTERSTATE WATER DISPUTES IN INDIA (1998).
8
An inter-state river is one which flows through more than one state or which forms the boundary between
two or more states. See MINISTRY OF IRRIGATION AND POWER, I REPORT OF THE IRRIGATION
COMMISSION 339 (1972).
9
See Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana (1996) 2 SCC 572.
10
This principle was enunciated by the US Supreme Court in State of Connecticut v. Commonwealth of
Massachusetts 282 U.S. 660 (1930). The equity theory was again reaffirmed in State of New Jersey v. State
of New York et al. (Commonwealth of Pennsylvania, Intervener), 283 U.S. 336 (1931).

2
constructed in one hundred and forty countries.11 India has also not been able to guard
itself from the temptation to indulge in a dam building spree and we have invested
heavily in dams. The National Register of Large Dams, 2009, points out that we have
nearly 5,144 large dams that are owned by the Union and State Governments, public
sector undertakings and even private entities.12 To feed the ever-burgeoning population, it
was imperative that we develop agriculture to become self-reliant in meeting our food
demands. Except for the perennial Himalayan Rivers, almost all the other river systems in
India are seasonal, necessitating human intervention in order to maintain essential water
supplies throughout the year. Consequently, huge resources were invested for building
dams to augment drinking water supply schemes, irrigation facilities and for producing
hydro-power, often ignoring vital safety parameters, as well as social and ecological
costs. As Pandit Jawaharlal Nehru advised the villagers displaced by the Hirakud Dam,
“[i]f you are to suffer, you should suffer in the interest of the country.”
Dams have always been central in India’s strategy of building up the socialist
welfare state; a fact substantiated by their being christened as ‘temples of Modern
India.’13 As observed by the Supreme Court of India, “… the right to development is … a
component of article 21 … [C]onstruction of a dam or a mega project is definitely an
attempt to achieve the goals of wholesome development. Such works could very well be
treated as integral component for development.”14 However, most of our dams are in ill
health, in dire need of rejuvenation therapy (repairs) and in some cases even euthanasia
(decommissioning).
Among the vintage dams, the primary one that has raked up considerable
controversy in recent times, threatening to despoil India’s federal fabric is the
Mullaperiyar, a dam nestled nearly 3,000 feet above sea level in the lush green virgin
forests of the Cardamom hills in the Western Ghats. Since the late 1970s, the safety of

11
Upendra Baxi, What Happens Next is up to You: Human Rights At Risk in Dams and Development 16
(2000-2001) Am.U. Int’l. L. Rev. 1507 at1509.
12
Information last updated on 13/02/2012 as per data supplied by States. National Register of Large Dams -
2009, online: <http://www.cwc.nic.in/main/downloads/National%20Register%20of%20Large%20
Dams%202012.pdf>.
13
It has been reported that during the five decades since independence, a number of large, medium and
small dams have been built of which 4,291 dams are large dams. V.P. Jauhari, Sustaining River Linking
(New Delhi: Mittal Publications, 2005) at 5.
14
N.D. Jayal v. Union of India, 2003 INDLAW SC 720 at paras. 23 & 24.

3
this dam has been the epicenter of a controversy between the two South Indian
neighbouring states of Kerala and Tamil Nadu. This paper accordingly looks at the issue
of dam safety as it has considerable potential to lead to acrimonious conflicts that can de-
stabilise the federal structure. This is particularly important as India may soon embark on
one of the most ambitious water infrastructure projects ever undertaken by mankind,
namely, the river-linking project. Utilising the Mullaperiyar controversy as the broad
canvas, this paper forwards a case to expedite the national dam safety legislation that has
been pending for so long. It argues that developing a culture of dam safety is an
imperative step for the successful implementation of the river-linking project since it
involves the construction of several dams, and their subsequent upkeep and maintenance
becomes an essential matter. This contribution has two main parts.
The first part presents a candid overview on the Mullaperiyar inter-basin transfer of
waters and the disputes over its safety aspects. As will be seen subsequently, the
Empowered Committee appointed by the Supreme Court to look into the safety issues of
the dam has opined that the dam is indeed safe and that the water level can be increased.
Despite this finding, the Empowered Committee set out two proposals as plausible long-
term solutions to the crises. Some of these and other proposals along with certain legal
issues that the controversy raises will be discussed in the second part. As well, in this era
where water has significant economic connotations, I will argue that the colonial lease
deed and the subsequent agreements that practically resurrect the principal lease deed to
govern the rights and duties of the parties is inequitable and one-sided and that it must be
reworked to reflect current economic realities and aspirations to lead to greater economic
development of the nation as a whole.
Before delving into the discussion, certain caveats are necessary. First, the
Mullaperiyar is a matter that is sub-judice before the Supreme Court of India and
therefore the object of this academic analysis is only to examine broadly the nature of the
dispute, its history, contesting claims, and possible solutions, thereby demonstrating the
importance of dam safety as a national priority area, as there is the potential that similar
conflicts might emerge in other states and could snowball into major issues to sour the
spirit of cooperative federalism. Second, this is a paper that has its moorings in the realm
of water law. Most of the legal issues that the Mullaperiyar controversy raises are sui

4
generis in nature due to the peculiarities of this dispute. This realisation forces the paper
not to look beyond the scope of some of the basic legal issues. The salience of the Dam
Safety Bill 2010 is beyond the scope of this paper. This is so because the draft that is
available in the public domain is nearly two years old and it is expected that more
changes will be introduced, thereby making any analysis of this Bill a premature effort.

I. THE MULLAPERIYAR CONTROVERSY: THE STORY SO FAR

Before proceeding to the fundamentals of the dispute, it is necessary to examine the
constitutional scheme for water management. Essentially, the legislative powers in
relation to water, are divided between the Union and the States. Analysis of the relevant
legislative entries reveals that the founding fathers thought it prudent to leave water
management to the exclusive domain of the states, i.e., the states are empowered to
legislate in respect of water supplies, irrigation and canals, drainage and embankments,
water storage, and water power.15 As far as inter-state rivers and river valleys are
concerned, the Union has been empowered to legislate in matters relating to the
regulation and development of inter-State rivers and river valleys.16 However, this power
is limited to the extent to which such regulation and development, under the control of
the Union is declared by the Parliament by law to be expedient and in the public
interest.17
The Indian constitution is often described as quasi-federal where greater powers are
conferred on the centre vis-à-vis the states. This is reflected even in matters of water
management since Entry 17 is made subject to Entry 56 of List I. Despite this, states are
not mere appendages of the centre and they definitely have an area of authority in water
management and they are supreme within their respective areas of authority. The centre
cannot simply ride roughshod over their powers.18 Accordingly, an examination of both
entries reveals that the state has competence to legislate with respect to all aspects of
water including water flowing through inter-state rivers subject to limitations, namely

15
Entry 17 of the State List states: “Water, that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power subject to the provisions of Entry 56 of List I”.
CONSTITUTION OF INDIA, Schedule VII, List II, Entry 17.
16
CONSTITUTION OF INDIA, Schedule VII, List I, Entry 56.
17
Id.
18
S.R. Bommai v. Union of India (1994) 3 SCC 1.

5
that the control of the regulation and development of the inter-state river waters should
not have been taken over by the Union and secondly that the state cannot pass legislation
with respect to or in a manner that affects any aspect of the waters beyond its territory. If
the union legislature fails to make the said declaration, it will not affect the powers of the
state to legislate in respect of inter-state river waters under Entry 17.
The constitutional scheme confers power on the states with regard to the
management of agriculture.19 Since agriculture depends primarily upon water including
river water the state legislature, while enacting a legislation for agriculture, may have the
competency to provide for the regulation and development of water resources including
water supplies, irrigation and canals, drainage and embankments, water storage, and
water power which are the subjects mentioned in Entry 17. However, such a legislation
enacted under Entry 14 in so far as it relates to inter-state river water would also be
subject to the provisions of Entry 56. Similarly, Entry 18 of List II, which speaks of land
improvement, among other things, may give the state legislature power to enact similar
legislation as under Entries 14 and 17 and be subject to the same restrictions. Thus, it can
be seen that states have wide powers in respect of the establishment of dams and the state
governments emerge as owners of the dams within their territories. It is this realisation
that has forced the Central Government not to legislate on issues relating to dam safety
even when it was increasingly felt that there had to be a law providing uniform dam
safety procedures. Dams are also national assets that are “constructed for the
development of the national economy and into which large investments and other
resources have been deployed.”20
Accordingly, based on the resolutions passed by the legislative assemblies of
Andhra Pradesh and West Bengal, the Ministry of Water Resources has prepared the
Dam Safety Bill, 2010, which will be placed before the Union Parliament for consent and
thereafter for subsequent adoption by all states under article 252. 21 The central
government can also exercise far-reaching powers that can effectively curb state powers
over dams. The Forest (Conservation) Act, 1980, which traces its origin to Entry 17A of

19
CONSTITUTION OF INDIA, Schedule VII, List II, Entry 14.
20
Ministry of Water Resources, Central Water Commission, Guidelines for Safety Inspection of Dams,
CWC Publication No. 21/87 (Central Water Commission, 1987 Revised) [Guidelines for Safety Inspection
of Dams].
21
See Dam Safety Bill 2010, Bill no. 108 of 2010, Statement of Objects and Reasons.

6
List III to the Constitution, is a brief legislative document that consists of only five
sections. Despite its brevity, this is a law that has revolutionised forest management in the
country, the most potent provision being section 2. It inter alia provides that,
notwithstanding anything contained in any other law for the time being in force in a state,
no state government or other authority can make, except with the prior approval of the
central government, any order directing ‘that any forest land or any portion thereof may
be used for any non-forest purpose.’22 What emerges is that this law effectively
proscribes the power of states to construct dams in forested areas by conditioning any
proposal for the same upon approval by the Central Government. Again, under the
Environmental Impact Assessment Notification, 2006, river valley projects that involve
50 or more mega watts of hydroelectric power generation or 10,000 hectares of culturable
command area, require environmental clearance from the Central Ministry of
Environment and Forests.23
The Central Government is also a very important dam builder through the several
corporations that it has established for this purpose. For instance, the NHPC Ltd.
(formerly National Hydro Development Corporation) plays an important role in building
and managing dams for hydropower generation. The Central Government has also
entered into joint ventures with state governments to build large, multi-purpose dams. A
case in point is the Tehri Hydro-Development Corporation created as a joint venture
between the Central Government and the State of Uttar Pradesh. 24 It should also be noted
that the 73rd and 74th Constitutional Amendment Acts, which led to the insertion of the
eleventh and twelfth schedules into the constitution, have conferred on both panchayats
and municipalities significant powers over water management, which includes matters
relating to dams. For instance, panchayats now have a major role in “minor irrigation,
water management and watershed development,”25 land improvement and soil
conservation,26 agriculture, including agriculture extension,27 drinking water,28

22
Guidelines for Safety Inspection of Dams, supra note 20. But see section Explanation to section 2 which
provides that “non-forest purpose” does not include any work relating or ancillary to conservation,
development and management of forests and wild life, like the establishment of dams. Id.
23
See Rule 2 and Category ‘A’ in the Schedule. See also Athirappally Grama Panchayat v. Union of India,
HC of Kerala, judgement dated 23 March, 2006 in W.P.(C) Nos. 9542 , 11254 & 260763 of 2005.
24
THDC India Ltd.: A Joint Venture of Govt. of India & Govt. of UP, online: <http://thdc.gov.in/>.
25
CONSTITUTION OF INDIA, Schedule XI, Entry 3.
26
Id. Entry 2.

7
maintenance of community assets, etc.29 As far as municipalities are concerned, the
Twelfth Schedule lists out “water supply for domestic, industrial and, commercial
purposes”30 and the “protection of the environment and promotion of ecological
aspects.”31 In short, even though dams are not expressly mentioned in the two schedules,
the ambit of the existing entries are so wide as to confer on local self-government units
the power to build and maintain at least minor dams.
A dam is any artificial barrier including appurtenant works constructed across
rivers or tributaries to impound or divert water.32 It is more or less a water harvesting
structure that receives water from common rainfall.33 In storing and releasing water, it
helps prevent desertification in times of scarcity, and in times of excessive rainfall it
helps to control floods. The canal system, which emanates from a dam helps to convey
and provide water across distances serving drinking, agricultural, and industrial needs. In
addition, it can also be used for hydro-power generation. In short, a dam is an
infrastructural project.34
While dams are generally inaugurated with huge fan fare, providing photo
opportunities for ministers, leaders, and water bureaucrats, no one really knows what
happens thereafter, particularly in relation to their upkeep and maintenance.35 This is
primarily because the ownership of most dams and their maintenance falls predominantly
within the purview of state governments and their water and irrigation departments. At
the same time, as more than 80% of India’s large dams are now more than 20 years old
there is need for a high level of monitoring and remedial action to ensure their continued
safety.36 With the rapid growth of population, and human settlements even in the close

27
Id. Entry 1.
28
Id. Entry 11.
29
Id. Entry 9.
30
Id. Entry 5, Schedule XII.
31
Id. Entry 8.
32
Dam Safety Bill 2010, Section 3(e), supra note 21.
33
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, at para 251.
34
Id. at para. 252.
35
It is believed that India has nearly 128 dams that are more than 100 years old and another 476 dams have
crossed the 50-year mark. Interestingly, there is no accurate information regarding the state of 202 dams,
pointing to the shoddy state of affairs vis-à-vis dam management. Baba Umar, Q&A Himanshu Thakkar,
Water Activist, Politics is fuelling animosity on the ground, Vol 8:50, Tehelka Magazine, 17 December
2011.
36
Ministry of Water Resources, Standing Committee on Water Resources, (2010-2011) Fifteenth Lok
Sabha, "The Dam Safety Bill, 2010" Seventh Report (Lok Sabha Secretariat, New Delhi, June 2011) at 17.

8
vicinity of dams, a dam break can be particularly catastrophic.37 There are also a large
number of dams located on inter-state rivers that serve the water demands of several
states. Consequently, the hazard potential of a dam may not be restricted solely to the
state where it is situated and there is a high possibility that the harmful consequences can
spread to several other states as well.38 Now, with the interlinking of rivers being a real
possibility in the near future, it is expected that there will be another dam building spree
and in certain instances old dams will even have to be refurbished to accommodate
additional waters.
Climate change also compels us to re-visit the issue of dam safety.39 With global
temperature rises there has been significant glacier thinning and retreat in the Himalayas
leading to the formation of new glacial lakes and the enlargement of existing ones.40
These are insecurely dammed by ice or moraines and are inherently unstable and they run
a perpetual risk of breaking, leading to what is known as a glacial lake outburst flood.41
With a series of aging dams already damming the Himalayan rivers, many more being
built, and even more planned, one dam burst due to the torrent of water that gushes down
because of a glacial lake outburst can lead to a domino effect of dam failures putting the
lives of millions of people at risk.42 For India, a country which has built and continues to
maintain dams in Nepal, dam safety has international dimensions as well. These different
reasons clearly underscore the importance of developing a culture of dam safety.
Essentially, dam safety is a comprehensive and holistic term that emphasises the
safe operation of dams and their appurtenant structures based on a cradle to grave
approach, thereby reducing the dams' potential to adversely affect human life, health,
property, and the surrounding environment. Dam safety begins right from the time of
investigations (e.g., valid and correct hydrological data is the starting point of safety), 43 to

37
Id.
38
Id.
39
The draft National Water Policy provides, “Planning and management of water resources structures, such
as, dams, flood embankments, tidal embankments, etc., should incorporate coping strategies for possible
climate changes.” Draft National Water Policy, supra note 1 at Para. 4.5.
40
ICIMOD, Glacial Lakes and Glacial Lake Outburst Floods in Nepal (Kathmandu: ICIMOD, 2011).
41
Id.
42
Ker Than, Google Earth Shows How Dams Could Worsen Climate Change: A project of two NGOs
highlights far-ranging effects of damming rivers, National Geographic Daily News, 28 November 2011.
43
Ministry of Water Resources, Central Water Commission, Dam Safety Organisation, Report on Dam
Safety Procedures (Central Water Commission) at 10.

9
the design stage, and spreads out to the construction stage (e.g., the quality of the
construction materials used),44 to the operational stage (requires maintenance, plans to
deal with emergency situations) and finally to the decommissioning stage.45

A dam break is the failure in the structures or in the operation of a dam that may
lead to an uncontrolled release of impounded water resulting in the flooding of
downstream areas causing destruction to life and property.46 It is typically caused by a
range of factors like age, construction deficiencies, inadequate maintenance, extreme
weather or seismic events, and wrong operation. Dam breaks are not new to India. In
1958, the Kaddam Project dam in Adilabad failed due to overtopping by floodwaters. 47 A
year later, the energy dissipation devices first failed for the Kalia dam in Gujarat and
subsequently the embankment collapsed due to a weak foundation bed.48 In 1977, the
Kodaganar Dam, in Tamil Nadu gave way leading to huge losses in property in
downstream areas. Two years later, the Machhu II dam in Gujarat broke leaving 2,000
people dead causing severe devastation in Morvi town and nearby villages. In 2005,
Nand Gavan dam in Maharashtra and Pratapura dam in Gujarat failed causing severe
flooding in downstream areas.49 The breaking of the barrage, which India constructed
over the river Kosi in Nepal and the consequent flooding and destruction once again
demonstrated why this river is known as the ‘sorrow of Bihar’.50 However, what makes
the Mullaperiyar dam and the dispute so unique is the fact that this dam and most of its
catchment is located entirely within the borders of the state of Kerala.51 Despite natural

44
Id at 10.
45
See generally Daniel D. Bradlow, et al, Regulatory Frameworks for Dam Safety: A Comparative Study
(Washington, DC: The World Bank, 2002).
46
Dam Safety Bill 2010, Section 3(f), supra note 21.
47
Prof. B.S. Thandaveswara, 41.2 History of Dam Failures, online: Hydraulics: Indian Institute of
Technology Madras <http://nptel.iitm.ac.in/courses/IIT-MADRAS/Hydraulics/pdfs/Unit41/41_2.pdf>.
48
Id.
49
CISMHE, 11 Dam Break Analysis & Disaster Management Plan, online: <
http://apspcb.org.in/pdf/lshep/EMP%20Report/Ch11_Disaster%20Management%20Plan2.pdf> at 151.
50
Kosi River -The Sorrow of Bihar, online: Gits4u.com <http://www.gits4u.com/w ater/kosi.htm>.
51
As far as the geographic details are concerned, the River Periyar originates in the Western Ghats in
‘Sundara Malai’ in the Sivagiri group of hills at an elevation of about 1,830m above MSL. Forty-eight
kilometers downstream, it joins the Mullayar and thereafter eleven kms. downstream of the confluence, it
passes through a narrow gorge which now houses the dam structures. Mullaperiyar Dam - Technical
Details, online: Mullaperiyar - In search of truth <http://jamewils.blogspot.ca/2011/11/mullaperiyar-dam-
technical-details.html>.

10
ownership, Kerala does not utilise even a single drop of its waters, which are channelised
to neighbouring Tamil Nadu for irrigation and generation of hydro-power.
The Mullaperiyar issue has been a bone of contention between Kerala and Tamil
Nadu for well over a century. The dispute had its genesis one hundred and fifty years ago
in the dense forest areas of the Western Ghats, when the British worried about the mass
migration of people and the dwindling land revenue collections from the drought that hit
Madurai, Tirunelveli, and Tanchavur districts started investigations regarding the
feasibility of a dam across the River Periyar in the erstwhile Travancore State. The
objective of the dam was to divert waters for irrigating the drought-hit areas in Tamil
Nadu. As has been explained,
“The object of the scheme is to utilise a portion
of the superabundant rainfall on the western
slopes of the Ghats for the purposes of irrigation
in the district of Madura to the east of the
watershed, where the rainfall is comparatively
scanty, and often very uncertain, and where
famine has in consequence been severely felt on
more than one occasion.”52

Negotiations started on 24th September 1862 and were centered primarily on the question
of payment for the use of the waters. The British rejected suggestions for a joint appraisal
on the volume of water, which would be diminished by the diversion. In this context, the
observation of the Dewan Peshkar of Kottayam, Mr. T. Rama Rao deputed by the
Travancore Government along with Mr. Vernede and Mr. A.W. Jacob, is pertinent. He
points out,
“[t]o a superficial observer it may seem strange
that so much water should be allowed to run
waste into the sea and that the river should not
be otherwise utilised, but a closer enquiry will
satisfy him that what may appear the waste of
waters, is the cause of the fertility and richness
of the lands of many a village through or along
which it flows. Any measure calculated to
diminish its water supply, will therefore

52
See Dispatch from the Government of India to the Secretary of State for India dated 27/06/1884, cited in
the Award of Diwan Bahadur V.S. Subramonia Aiyar Avergal, In the Matter of Periyar Arbitration
Tribunal (1937).

11
 injuriously affect many a part of North
Travancore. It may perhaps bring in good return
to the government, but it cannot satisfactorily
compensate the losses for which the people and
the country will suffer in consequence.”53

Thus, it is clear that Travancore clearly knew that there were dangers in transferring the
waters; but it could not do anything about it. Subsequently, on the death of Maharaja Sri.
Vishakam Thirunal, when the whole state was in mourning, the British Resident
addressed a letter to the then Dewan pointing out that, “as the matter had been fully
discussed and arranged prior to the lamented decease of His later Highness, I trust that
your proposals might be laid before me without further delay.” However, the proposals
laid down by Travancore, which included the transfer of Anjengo and Thankasseri, which
were under the direct control of the British were shot down. Finally, as was the case with
several other princely states, the British forced the Agreement upon the native
Travancore rulers.54
The Periyar Lease Deed entered into on 29 October 1886, granted to the British, in
addition to 8,000 acres of land, another 100 acres for constructing the Periyar Project. 55 It
also granted to the lessee all the waters flowing into, through, over or from the 8,000
acres of land and the full right, power and liberty to construct and to use exclusively all
irrigation works for all purposes connected with the Periyar Project.56 The lessee also
secured fishing rights and the right to all the timber in the demised lands with liberty to
cut down, and use free of all charges, the timber.57 Right of way and passage over the
demised lands were also granted.58 The term of the lease was to be 999 years, on expiry
of which, the premises were to be delivered up with option of renewal on the same terms
if the lessee so desired.59 The lessee was given the right to surrender even before the

53
See 4 T.K. VELU PILLAI, THE TRAVANCORE STATE MANUAL 407-8 (S. Raimon ed., 1996).
54
See id.
55
See GOV’T OF KERALA, PERIYAR LEASE DEED AND SUBSEQUENT AGREEMENTS (1999)
Paras. 1 & 2 [GOV’T OF KERALA, PERIYAR LEASE DEED].
56
Id. at Para. 3.
57
Id. at Paras. 6 & 5.
58
Id. at Para. 7.
59
See id.

12
expiry of the lease on payments due.60 The rent payable was fixed at Rs. 40,000, which
was to be deduced from the tribute payable by the lessor to the Government of India.61
Penalty for breach was included and the relevant part read as follows: “These presents are
on the express condition that if and whenever there shall be a breach of any of the
covenants and agreements by the lessee herein contained the lessor may re-enter upon
any part of the said premises in the name of the whole and thereupon the said term of
nine hundred and ninety-nine years shall absolutely determine.”62
The construction of the first masonry dam of its kind in the country was completed
in 1895 by Colonel John Pennycuick, who braved several odds in the malarial infested
swamps and forests and who some say, had to even sell off his property to raise funds to
complete the project. An architectural marvel built out of limestone masonry and lime
surkhi concrete, it is also one of the earliest examples of the inter-basin transfer of water,
with water transferred from the Periyar River basin in Kerala to the recipient Vaigai
River Basin in Tamil Nadu.63 It consists of the main dam, the baby dam and other
appurtenant works and some of its salient features are as follows: it has a length of about
365.76 meters; the Full Reservoir Level (FRL) stands at 152 ft; its gross storage capacity
is about 15.662 thousand million cubic ft (TMC); the irrigation benefit to Tamil Nadu
169,408.68 acres.64 The area is also highly significant from a biodiversity perspective. In
1899, the State of Travancore declared the lease land as a reserve forest under the
Travancore Forest Act. Subsequently, in 1934, the area was declared as the Periyar
Wildlife Sanctuary, and under the Wild Life Protection Act, 1972, the area was expanded
to 777 square kilometers. In 1978, the sanctuary was also declared as the Periyar Tiger
Reserve. The Periyar Tiger Reserve is the oldest sanctuary in Kerala, and has IUCN
recognition as a biodiversity hot spot.
The first visible signs of cracks in water relations appeared in 1932, when a
dispute erupted between the Travancore and Madras over whether the 1886 lease deed

60
See id.
61
See id.
62
See id.
63
For the saga of the dam construction see A. MOHANAKRISHNAN, THE CENTRAL BOARD OF
IRRIGATION AND POWER, HISTORY OF THE PERIYAR DAM WITH CENTURY LONG
PERFORMANCE 19-71 (C.V.J. Verma ed. 1997).
64
AIR 2006 SC 1428, para. 4.

13
gave the latter the right to use the Periyar waters for power generation. The matter was
referred to a Tribunal of two arbitrators, and upon their failure to reach an agreement it
was referred to an umpire.65 The umpire in his award declared that a construction of the
principal deed would reveal that the lessee had the right to use the water for irrigation
purposes only. If it was possible for Madras to generate hydroelectric power then the
same could be used only for irrigation purposes.66 Later, in 1954, an informal agreement
for power generation was entered into between the leaders of the two states, and Tamil
Nadu constructed the Periyar hydroelectric project. In 1956, the State of Kerala was
formed under section 5 of the States Reorganisation Act. Section 108 of this Act also
provided that any agreement or arrangement entered into by the central government and
one or more existing states relating to the right to receive and utilise water can continue
to remain in force subject to certain adaptations and modifications as may be agreed upon
between the successor states.
Accordingly, on 29 May 1970, in a magnanimous gesture, which many in Kerala
now feel to be a major blunder, the two States of Kerala and Tamil Nadu, as successors in
interest of State of Travancore, and the Government of the province of Madras entered
into an agreement amending the Periyar Lease Deed (which in reality renewed almost in
toto the 1886 lease agreement).67 Only certain minor changes were incorporated into the
original lease deed. Tamil Nadu surrendered to Kerala the fishing rights and the rent
payable was revised to Rs.30 an acre and was to be reviewed every thirty years.68
Another Agreement was also entered into on the same day, by which Kerala conveyed to
Tamil Nadu the power rights in the Periyar waters. Tamil Nadu was given the liberty to
develop at their own post and for their exclusive benefit hydroelectric power for any

65
The Periyar Lease Deed, 1886 in Para. 7 had provided that if in case any dispute arose between the lessor
and the lessee with regard to the deed then the matter was to be referred to two arbitrators or their umpire.
Accordingly, the dispute was initially referred to the Periyar Arbitration Tribunal consisting of Sir. David
Devadoss and Diwan Bahadur V.S. Subramonia Aiyar Avergal. However, as they failed to arrive at a
consensus the matter was again referred to the umpire Sir. Nalini Ranjan Chatterjee. For the text of the
award see GOV’T OF KERALA, PERIYAR LEASE DEED, supra note 55.
66
See id. at 58-91.
67
See AGREEMENT AMENDING THE PERIYAR LEASE DEED OF 1886 dated 29th May 1970; see also Section
108 of the States Reorganisation Act, 1956.
68
Id.

14
purpose from the Periyar waters. In consideration of the conveyance of the power rights,
Tamil Nadu was to pay an amount annually to the Kerala Government.69
In the past the reservoir used to be filled up to the full level of 152 feet (ft). The
dispute acquired a new dimension in 1979, when leaks were detected in the gallery of the
dam, which caused concern in Kerala about its safety. Accordingly, a Central Water
Commission team conducted a study of the dam and found no danger to it, but as a matter
of abundant precaution recommended the lowering of the reservoir water level to 136 ft,
until measures to strengthen the dam were implemented.70 Since 1998, Tamil Nadu has
been claiming that it has carried out all the important measures to strengthen the dam. 71
However, Kerala continues to nurse apprehensions regarding the safety of the dam and
has not allowed Tamil Nadu to raise the reservoir level beyond 136ft.72 Safety of the dam
has become the dominant factor in the discord over Mullaperiyar.
Initially, petitions were filed before the Kerala and Madras High Courts,
respectively. As there was the possibility of conflicting opinions, a transfer petition was
filed which brought the matter before the Supreme Court, which by an interim order,
directed the Union Government to constitute an expert team to look into the matter. In its
report, the Committee headed by Dr. B.K. Mittal, concluded that it was safe to raise the
water level to 142ft. without delay and thereafter raising the water level to 152ft. could be
considered after strengthening the baby dam. In effect, this set the stage for the first
judicial intervention in the Mullaperiyar matter by the Supreme Court.
Apart from issues of jurisdiction73 and the validity of section 108 of the States
Reorganisation Act, 1956,74 the two primary questions that the Supreme Court had to

69
If the electrical energy generated by Tamil Nadu does not exceed 350 million units in a year then the
amount was fixed at Rs.12 per KW year of electrical energy. If it exceeds this ceiling then the rate was
fixed at Rs. 18 per KW year for the electrical energy generated in excess of 350 million units. Para.7 Cl. (i)
& (ii). See TAMIL NADU-KERALA AGREEMENT ON PERIYAR HYDRO-ELECTRIC SCHEME dated 29th May
1970.
70
MOHANAKRISHNAN, supra note 63, at 207-31.
71
R. Krishnakumar, Over to the Supreme Court, FRONTLINE, Nov. 25, 2000, at 33.
72
“Increasing the reservoir capacity will be detrimental to the safety of the dam. Any structural failure of
Mullaperiyar Dam could cause cascading damages to our structures at the giant Idukki, Cheruthoni and
Kulamavu Dams of Idukki Project.” See Letter from Sri. E.K. Nayanar, then Chief Minister, Kerala, to Sri.
Atal Behari Vajpayee, former Prime Minister, India (Apr. 12, 1998) (on file with the Public Relations
Department, Govt. of Kerala).
73
See infra discussion in text, 7. Understanding the Role of Courts in Dam Safety.

15
consider in Mullaperiyar Environmental Protection Forum v. Union of India75 centered
on the issue of degradation to the environment and the issue of the dam safety if the water
level was raised from 136ft. to 142ft. Kerala argued that the forestland immediately
above the water level of 136ft. has special biodiversity significance as these were the
primary habitats of most wild animals like the larger herbivores, carnivores and
amphibians. Birds like darters and cormorants nest on tree stumps, which stand
distributed in the reservoir. Raising the water level will lead to the submergence of a vast
forest area adversely affecting the biodiversity and the ecology and economy of the State.
In such circumstances, Tamil Nadu is not entitled to increase the water level and
moreover it was necessary to comply with the mandatory provisions of the Forest
(Conservation) Act, 1980 and the Wild Life (Protection) Act, 1972. Kerala placed
reliance on section 26A of the Wild Life (Protection) Act, which stipulates that the
boundaries of a sanctuary shall not be altered except on a recommendation of the
National Board constituted under section 5-A of the Act.
On the other hand, Tamil Nadu, argued that the provisions of the Kerala Forest Act,
1961 and the Wild Life Protection Act, 1972 did not apply in the instant matter and that
moreover, raising the water level from 136ft. to the full reservoir level (FRL) of 152ft.
would submerge only 11.2 square kilometers, which is only 1.44% of the total area. It
was also asserted that raising the water level will not only improve the wildlife habitat, it
would also benefit Kerala economically, firstly by leading to an increase in aquatic life in
the reservoirs (Kerala holds the fishery rights) and secondly, by leading to an increased
tourist inflow into the area.
The Court speaking, through the then Chief Justice Y.K. Sabharwal, rejected
Kerala’s arguments regarding permission since the act of raising the water level did not

74
It was argued that section 108 of the States Reorganisation Act, 1956 which inter alia provides that any
agreement or arrangement entered into between the Central Government and one or more existing States or
between two or more existing States relating to distribution of benefits, such as the right to receive and
utilise water or electric power, to be derived as a result of the execution of such project, which was
subsisting immediately before the appointed day shall continue in force, is outside the legislative
competence of the Parliament as the same does not fall under List I of Seventh Schedule, but under List-II.
Rejecting this argument, the court traced s.108 to articles 3 and 4 of the constitution, which are plenary in
nature traversing all legislative subjects for effectuating a proper reorganisation of the States. Accordingly,
the vires of the section was upheld. Mullaperiyar Environmental Protection Forum v. Union of India AIR
2006 SC 1428.
75
AIR 2006 SC 1428.

16
alter the boundaries of the sanctuary, which still remained at 777 square kilometers.
Moreover, the water level in the reservoir hovered around 152ft. for the most part and it
was only in 1979 that the water level was brought down to 136ft. due to safety reasons.
As well, it was held that the strengthening work of the existing dam in the forest was not
a non-forestry activity and so attracted section 2 of the Forest (Conservation) Act, 1980,
requiring prior approval of Union. While rejecting Kerala’s contention that the Expert
Committee had not gone into the adverse impacts on the environment consequent to
increasing the water capacity of the dam, the Court held that records clearly indicated
that,
“… there will be improvement in the
environment. … [T]he fauna, particularly,
elephant herds and the tigers will be happier
when the water level slowly rises to touch the
forest line. In nature, all birds and animals love
water spread and exhibit their exuberant pleasure
with heavy rains filling the reservoir resulting in
lot of greenery and ecological environment
around.”76

On this basis, it was held that there was no substance in the contention that raising the
water level would adversely affect the environment. As far as the safety aspect was
concerned, Kerala argued that this dam had a life span of only 50 years from the date of
its construction. Having withstood the ravages of time for more than a century, it had
served the nation far more than its useful life. The dam was built at a time when design
and construction techniques were in their infancies, and therefore there were no accurate
and detailed tests regarding the construction materials utilised. Moreover, the dam is
situated in an earthquake prone area and if the dam were to give way, it could lead to
serious destruction of life and property in five important districts of Kerala. Brushing
aside these apprehensions as baseless, the Supreme Court held that the report of the
expert committee set up to study the issues of safety and of raising the water level after
inspection of the main dam, the galleries, the baby dam, earthen bund and spillway,
concluded that the dam was safe and that there was no excessive seepage. Moreover,
Tamil Nadu had taken all measures to strengthen the dam, while it was the obstructionist

76
Id.

17
attitude on the part of Kerala that had prevented the completion of the work. It was also
held

... that the dam immediately in line after

Mullaperiyar dam is Idukki dam. It is the
case of State of Kerala that despite the
‘copious rain,’ the Idukki reservoir is not
filled to its capacity, while the capacity of
reservoir is 70.500 TMC, it was filled
only to the extent of 57.365 TMC. This
also shows that assuming the worst
happens, more than 11 TMC water would
be taken by Idukki dam.77

It goes without saying that protecting the environment and nature, is imperative.
However, measures to improve the environment and to afford happiness to elephants and
tigers particularly when their numbers are fast dwindling should not be at the cost of
putting the lives of people, property and future generations at grave risk. The imaginative
disaster management strategy, which the court suggested for the people inhabiting
downstream areas of the Mullaperiyar in the event of a dam break, is highly flawed. As
can be seen from a close reading of the above observation, in a situation where the
Mullaperiyar dam gives way, what the court envisaged was that the Idukki reservoir
situated downstream will accommodate the additional waters of the Mullaperiyar. But
this is not as easy as it is made out to be. A safe accommodation can happen at the Idukki
dam only if it is not up to its full brim. If the Mullaperiyar dam were ever to fail at a time
when the Idukki reservoir was up to its maximum capacity, the result would be
catastrophic. Moreover, the court did not give any thought to the damage that could ensue
to the Idukki reservoir if the debris of the Mullaperiyar dam and the consequent waters
were to find its way into it. Again, Kerala being a small state with a dense population,
there are many towns and settlements between the Mullaperiyar and the Idukki dam,
which would be washed away in the ensuing sheath of waters. As a former Minister for
Water Resources of Kerala State observed:
The claim that the Idukki dam can contain the
flood water in the event of the Mullaperiyar
dam collapsing is contrary to the truth. The
77
Id.

18
 combined storage of the Mullaperiyar and
Idukki reservoirs had crossed the FRL in 1981,
1992, 1994, 1998, 2005 and 2007. In the event
of such a situation arising again and the
Mullaperiyar dam collapsing, Idukki would
overflow, thereby putting its stability under
serious jeopardy. There are more than 1.5 lakh
people living downstream between the
Mullaperiyar structure and the Idukki dam.
What happens to them in the event of damage to
the Mullaperiyar dam? Kerala stares at the
prospect of a 30-feet tall column of water
surging down at a speed of 50 kmph upon the
Idukki and Kulamavu dams, thereby
overwhelming them and setting off a chain of
events that have the makings of an apocalypse
for the 35 lakh people living in four districts.
The Government of Kerala has to protect its
people.78

This is not a mere hypothetical conjecture. A dam failure akin to the scenario described
above has occurred in Maharashtra, when the Khadkawasla dam (a masonry gravity dam
built on hard rock in 1879) gave way because the upstream Panshet dam failed due to
heavy rains. The huge quantity of water that it released found its way into the
Khadkawasla reservoir, which was already full leading to overtopping, and the
Khadkawasla dam burst within four hours of the visiting floodwaters. Of course, it goes
without saying that the Mullaperiyar-Idukki scenario is quite different from Panshet-
Khadkawasla.79 For instance, the topography, the technology used in the construction of
the two sets of dams, the water quantity, the capacity, the distance between the dams, and
the population concentration are all different. Still, Panshet-Khadkawasla helps us to
surmise that there is the possibility of such a disaster occurring in Central Kerala. It is
thus apparent that the Supreme Court did not appreciate the issue of dam safety in all its
dimensions. While this verdict was welcomed in Tamil Nadu, Kerala was highly
aggrieved by this order.
Prior to this order, there was already a general feeling amongst the people in the

78
N.K. Premachandran, The case for a new Mullaperiyar dam, The Hindu, 3 January 2012, online: The
Hindu <http://www.thehindu.com/opinion/op-ed/article2769504.ece>.
79
Thandaveswara, supra note 47.

19
state that it had been at the loser’s end in the matter of all other instances of interstate
river water sharing and that the interests of neighbouring states were finding priority over
its legitimate water needs.80 The following observations of a former Chief Minister of
Kerala are relevant.
Any question of sharing of waters of the rivers should
normally arise only after Kerala has had an
opportunity to develop them to the fullest extent. But
here we have a curious situation of the needs of
another state being given precedence in the matter of
our waters … If and when we have completed
development of these rivers, will it be time to consider
if we can help Madras out. But the reverse shall not be
the processes i.e. Madras taking away our water even
before we get an opportunity to use them.81

At the same time, at the national level, the Central Government had begun initial steps for
implementing the inter-linking of rivers project following an order by the Supreme Court,
and Kerala had much to worry about. In the 1980s, the National Water Development
Agency82 had conducted a study and came to the conclusion that the Pampa and
Achankovil rivers of Kerala had surplus waters of 3,127 million cubic meters and that
634 million cubic meters of this water could be diverted across the border to irrigate
91,400 hectares of land in the water scarce Tirunelveli, Tuticorin and Virudhunagar
districts of Tamil Nadu. The Pampa-Achankovil-Vaippar Link Project envisages the
construction of three dams across Pampa-Kall Ar, Achenkovil-Kal Ar and Achenkoil in
the Pathanamthitta district of Kerala and connecting these reservoirs by tunnels. The
water stored will then be diverted to Tamil Nadu by means of a 9 kilo meter long tunnel
across the Western Ghats. The exit end of the proposed tunnel on the Tamil Nadu side is
very near to Mekkara dam. However, Kerala has been strongly objecting this link on the

80
Radhakrishnan Kuttoor, Interlinking of rivers: PAVLP to cost Kerala dearly, The Hindu, 28 February
2012, online: The Hindu <http://www.thehindu.com/news/states/kerala/article2942209.ece>.
81
See Letter to Sri. C.B. Pant, then Home Minister, Govt. of India, (May 9, 1960) quoted in R. Jayapalan
Nair, The Kerala and Interstate Water Agreements – A Report (presented at the Workshop on Kerala and
Interstate River Water Agreements on Mar. 23, 1997).
82
The Government of India established the National Water Development Agency to carry out studies and
frame suitable proposals for diverting the surplus waters of the Peninsular Rivers including west flowing
ones as part of the Peninsular River Development Component of National Perspective Plan for the
development of Water Resources of the Nation. See Redrawing India’s Geography, in SURVEY OF THE
ENVIRONMENT, 7-49 (The Hindu 2003).

20
ground that there is no surplus water in the said rivers for diversion. Furthermore, any
diversion would lead to a shortfall in the supplies to the Vembanad wetland region, into
which these rivers drain, leading to disastrous environmental problems.
It was in such circumstances that Kerala enacted new irrigation legislation in 2003,
which inter alia provides for the constitution of the Kerala Dam Safety Authority for the
purposes of surveillance, inspection and advice on the maintenance of dams situated
within the state.83 Despite being an irrigation statute, the law contains provisions aimed at
protecting the state’s interests in the event of implementation of the river linking project.
It is provided that no person, agency, authority or local authority can divert any river or
affect linking of two or more rivers or inter-basin transfer of waters without the prior
permission of the government.84 If any structure is constructed on a river for the purpose
of linking, the government or its officers can remove such structures and recover the cost
of such removal from the person or authority responsible for such construction.85
Furthermore, it is provided that no water from a water-course in the state shall be
distributed to any other state or union territory except in accordance with an agreement
between the concerned parties as well as on the terms of a resolution to that effect passed
by the State Legislative Assembly.86 Even though this provision imposes a fetter on the
executive’s power to enter into interstate river water sharing pacts, the same has been
incorporated primarily because of the Mullaperiyar controversy since the state executive
in 1970 had in an apparently unilateral act without properly assessing the state’s future
water requirements revitalised the derelict Periyar Lease Deed, 1886.87 It is to prevent the
recurrence of such events and consequent allegations of bartering away of the state’s
interests that the lawmakers incorporated this key provision.
Following the Mullaperiyar verdict that permitted raising the water level from 136
ft to 142 ft, the Kerala Irrigation and Water Conservation Act was amended in 2006. The
most important change brought about by this amendment is that it significantly re-cast
section 62 (describing the functions of the authority) and it added a new section 62A
(scheduled dams) and defined the term “custodian.” Some of the salient features of the

83
The Kerala Irrigation and Water Conservation Act, 2003, Act 31 of 2003, Section 57(1).
84
Id. section 6(1).
85
Id. section 6(2).
86
Id. section 30.
87
See PILLAI, supra note 53.

21
law as amended from the perspective of dam safety and the river linking project are set
out below.
The term custodian is defined to mean “any State Government, or any local
authority, body corporate, associations of persons or an individual, who under any law,
contract, treaty, agreement, order, judgment or decree has been granted the right to
establish, or has established or is running or otherwise operating any dam within the State
of Kerala.” In other words, this term is wide enough to include Tamil Nadu, which owns
and operates nearly four dams in Kerala: namely, the Mullaperiyar, Parambikulam,
Thunakadavu and the Peruvaripallam.88 The amendment has revamped the functions of
the Kerala Dam Safety Authority. Notwithstanding anything contained in any other law,
judgment, decree or order of any court or in any treaty, agreement, contract, instrument or
other document, the Authority can now exercise the following functions: namely,
conducting periodical inspection of all dams; evaluating their safety and security;
advising the Government on security measures to be adopted for all dams; advising the
Government, the custodian, or other agencies on the policies and procedures for onsite
investigation, design, construction, operation and maintenance of dams; and carrying out
such other functions as may be assigned to by the government. 89 Apart from these
functions, the authority can direct the custodian of a dam that poses threats to human life,
property or to public safety to carry out alterations, improvements, replacements,
strengthening measures and, if need be, suspend or restrict its functioning, or even
decommissioning the dam if so required.90
The authority can issue advice, recommendations, or directions relating to any of
the above matters, and the custodian, or any other agency to whom it is addressed, must
act upon it, taking steps to give effect to the same.91 Similarly, if the advice or
recommendations relate to a dam owned or controlled by a person other than the
government, then the government can issue orders or directions as it deems fit, requiring
such persons to take measures or do such things within the stipulated time so as to give

88
K.V. Ramalingam, Public Works Department, Tamil Nadu, Demand No: 40, Policy Note 2012-2013, at
78.
89
Kerala Irrigation and Water Conservation (Amendment) Act, 2006, Section 62.
90
Id.
91
Id. Section 62(2).

22
effect to the advice or recommendations.92 Upon default, the Authority can direct the
Government to take possession and control of the dam for such period and take such
measures, or do such things, or refrain from doing such things, as may be necessary to
give effect to the order or direction of the Authority, and the cost incurred by the
Government for that purpose can be recovered from the custodian or any other agency to
whom the order or direction was issued, as if it were arrears of revenue due on land to the
state.93
The other important changes that it introduces is that it adds, via section 62A, a list
of “scheduled dams,” which are dams that are endangered due to their age, degeneration,
degradation, structural or other impediments. Topping this list is the Mullaperiyar dam.
Furthermore, it also provides that “[n]otwithstanding anything contained in any other law
or in any judgment, decree, order or direction of any court, or any treaty, contract,
agreement, instrument or document, no Government, custodian or any other agency shall
increase, augment, add to or expand the Full Reservoir Level Fixed or in any other way
do or omit to do any act with a view to increase the water level” that has been fixed and
set out in the second schedule. For the Mullaperiyar this has been fixed at 136ft.94
Similarly, any act or work for the purpose of increasing or expanding the storage capacity
or increasing the full reservoir level that has fixed for the scheduled dam cannot be
carried out unless the Dam Safety Authority so permits.95 The amendment also brought to
a halt all works and other preparations in all scheduled dams aimed at increasing the
fixed full reservoir level, and all the concerned bodies (e.g., custodian, government, or
other agency) that were carrying out such measures were called upon to obtain the
consent of the Dam Safety Authority in writing.
In short, it is clear that section 62A practically nullifies what the Supreme Court
had ordered in the Mullaperiyar case, namely that Tamil Nadu can increase the height of
the dam to 142ft. However, a reading of the amendment provisions reveals that even
though some of these are Mullaperiyar-centric, broadly they do address aspects of dam

92
Id. Section 62(3).
93
Id. Section 62(5).
94
Id. Section 62A(2).
95
Id. Section 62A(3). For the purpose of carrying out such works, prior consent in writing has to be sought
from the Dam Safety Authority and the proceedings to determine such applications are treated as judicial
proceedings and the Dam Safety Authority was to have the powers of a civil court. Id. Section 62 B.

23
safety and strengthen the previous provisions. If it were not for the Mullaperiyar
decision, the amendment in all probability would have passed constitutional muster since
state governments fundamentally have the responsibility for dams and they are also
required to protect the right to life under article 21, and the public health of citizens under
Entry 6 of List II of the VII Schedule. Merely because a dam is owned and operated by
another state should not ipso facto divest the state on whose territory the dam is situated
from insisting on the maintenance of certain safety standards, since the harmful
consequences of a dam failure will primarily befall the inhabitants of the state in which it
is situated.
If one of the dams owned and operated by another state were to break or was in
grave danger of an imminent break, this would pose a serious threat to public safety and
would undoubtedly constitute a public nuisance. States possess sufficient authority to
abate public nuisances. In such cases, prompt action is necessary to avert a disaster and
we do not want the officials on the line wasting precious time in ascertaining whether
they possess sufficient authority to act or not. Consequently, express statutory
authorisation is preferred. However, in line with the spirit of co-operative federalism, it
would have been better if the drafters of the amendment had considered the creation of a
joint body chaired by a chief engineer of the Central Water Commission (or other high-
ranking officer) and the chief engineers and other relevant representatives from both
states participated in deliberating, deciding, implementing and reporting on the upkeep
and safety of such dams (namely, the four Tamil Nadu dams situated within Kerala
State).
Against this legislative attempt by Kerala to frustrate the Mullaperiyar decision,
Tamil Nadu filed an original suit before the Supreme Court seeking the invalidation of
the Kerala Irrigation and Water Conservation (Amendment) Act, 2006. On the other
hand, the Kerala argues that there are genuine safety concerns and that it is willing to
build a new dam at its own cost, and will ensure that there is no fall in the water drawls of
Tamil Nadu. Due to these reasons, the law is a valid exercise of power. State of Tamil
Nadu v. State of Kerala96 deals with these issues and this is a closely watched legal battle
by the people on both sides of the Mullaperiyar. In recognising the broad implications

96
Original Suit 3 of 2006, Supreme Court of India (IndLaw).

24
and the undercurrents of this dispute, the Supreme Court in the interim directed that “the
two state governments, independently or with the intervention of Union of India may try
to sort out, if possible, the dispute.”97
Meetings of the Chief Ministers of both states in the presence of the Union Minister
of Water Resources were organised but were of no avail. Kerala stuck to its demand for a
new dam, which was not acceptable to Tamil Nadu, leading to a deadlock.98 It was in
such circumstances, that the Supreme Court considered it appropriate to call for a report
from an Empowered Committee on all issues related to the Mullaperiyar Dam before it
proceeded further with the matter. Accordingly, it directed the Central Government to set
up an Empowered Committee comprising of Dr. A.S. Anand, former Chief Justice of
India, as the Chairman, a member each to be nominated by Tamil Nadu and Kerala in
consultation with the Chairman and two renowned technical experts not connected with
the dispute to be nominated by the Central Government in consultation with the
Chairman. The Court also requested the Committee to furnish the report after hearing the
parties on all issues raised before them, without being limited to the issues that were
raised before the Court.99
After several rounds of bickering, the Empowered Committee consisting of
Justice Dr. A.S. Anand, Justice K.T. Thomas, and Justice (Dr.) A. R. Lakshmanan, Dr.
C.D. Thatte and D.K. Mehta finally sat down to their work. Based on the investigations,
studies and tests carried out by the Central Water Commission, the Central Soil Materials
and Research Station and the Central Water and Power Research Station, besides other
specialised organisations of the Government of India, the Empowered Committee
concluded that the dam was safe from hydrological, structural and seismic perspectives
and therefore the FRL could be raised from 136ft. to 142ft.100 As far as the question of
raising the FRL beyond 142ft. was concerned, it was suggested that the matter would
have to be referred to a new independent expert committee.

97
Litigation History: Writ Petitions Before High Courts, online: Mullaperiyar - In search of truth,
<http://jamewils.blogspot.ca/2011/11/litigation-history.html#more>.
98
2010 INDLAW SCO 86.
99
Id.
100
Full text: Expert panel's report on Mullaperiyar Dam, NDTV, 4 May 2012, at p. 104, online: <
http://www.ndtv.com/article/south/full-text-expert-panel-s-report-on-mullaperiyar-dam-206459>.

25
 With regard to the hydrological aspect, the Committee found that since the top
elevation of the dam and the parapet rises sufficiently above the maximum water level,
the reservoir water will not spill over it and therefore it will not jeopardise safety. As
well, the spillway allows for the safe passage of a moderated probable maximum flood.101
As far as the issue of structural safety was concerned, the Committee concluded that both
the main dam and the baby dam were structurally safe. It was also pointed out that the
seepage through the dam was within permissible limits and that the dam was not
adversely affected due to the leaching of the free lime dissolved in the seepage water. The
Committee also emphasised that requisite maintenance and repair measures needed to be
carried out in a time-bound manner.102 With regard to the seismic parameter, the
Committee found that the dam was seismically safe for a FRL of 152ft. Utilising the
dynamic 2D FEM analysis, it was found that the strength and other properties of the dam
materials indicated that there was ample reserve against likely stress. In addition, the
reserve strength of the cable anchors serve to reinforce the dam.103 It was also pointed out
that the recent earthquake activity in the dam area did not cause any distress either to the
Mullaperiyar or to the Idukki dams. The suspicion as to the existence of a geological fault
in the baby Dam was also ruled out.104
Based on the primary finding that the existing dam is “hydrologically, structurally,
and seismically safe,” it was seen as possible to raise the FRL from EL 136 ft to 142ft.105
Consequently, the Committee felt that proposal by Kerala to build a new dam required
reconsideration.106 In addition, the Empowered Committee also proposed two alternatives
as the way forward for amicable resolution.107
The first alternative endorsed the construction of a new dam (which Kerala has
been demanding all along). Such a dam was to have techno-economic approval of the
Planning Commission and also environmental clearance from the Ministry of
Environment and Forests. The Committee opined that the cost of such a dam would be
around Rs.1,000 crores and the whole task of obtaining statutory clearances, deciding on
101
Id. at 102 & 104.
102
Id. at 103 & 105.
103
Id. at 105.
104
Id. at 103.
105
Id. at 105.
106
Id. at 103.
107
Id. at 106.

26
the construction agency, preliminary works, the actual construction, decommissioning
and demolition of the existing dam would take eight to ten years. In such circumstances,
the existing dam would be decommissioned only after the new dam was operational and
until such a time, the rights of Tamil Nadu in the existing dam to all the waters of the
Mullaperiyar arising out of the 1886 lease deed and the 1970 Agreement was to be fully
honoured.
The Committee forwarded certain pre-conditions that needed to be fulfilled prior to
the operation of the new dam, and it was only on satisfying these conditions that the
existing dam would be decommissioned. The first condition related to a fresh
memorandum of understanding to be entered into between Kerala and Tamil Nadu; the
second dealt with the control, management, operation, maintenance and regulation of the
waters of the new dam which was to vest in a new independent committee chaired by a
representative of the Central Government, with representatives from Kerala and Tamil
Nadu as its members. As well, it was also proposed that the while Tamil Nadu continue
to be entitled to all its existing rights including all water levels secured under the 1886
Lease Deed and the 1970 Agreement, the terms of rent/levies, etc. payable by Tamil
Nadu to Kerala and the power generation rights of the two states were to be settled
beforehand. Until the new dam is commissioned the existing dam must continue to be
strengthened.
As far as the second alternative is concerned, the Committee, in accordance with
the guidelines brought out by the Dam Safety Organisation of the Central Water
Commission, mooted the construction of a new tunnel, which in its opinion addressed
“the safety concerns of the SoK and the requirements of the SoTN.” Under this formula,
the existing dam would continue to be utilised after completing the remaining
strengthening measures and the construction of a new tunnel for evacuation of reservoir
water.108 This new tunnel was to be in addition to the existing one and would be designed
to divert water from the Periyar reservoir to the Vaigai basin in Tamil Nadu. The existing
tunnel allows the reservoir draw down only to 106.5ft. Storage lower than existing level
106.5ft cannot be drawn-down through the existing tunnel in the event of likely distress

108
Id. at 110.

27
and therefore it was suggested that the new tunnel should be designed in a manner so as
to evacuate the reservoir water from existing level 106.5ft to 50ft.109
This option, if implemented, would save capital that otherwise would have to be
raised for the construction of a new dam, and it would help to utilise unused waters,
support the generation of additional power, and more importantly assuage “the fear
perception in the minds of the people of SoK,” since the new tunnel would facilitate
evacuation of storage water faster and more efficiently if the dam were to develop any
distress.110 Moreover, it is only seldom that a gravity dam has caved in unexpectedly, and
the Committee felt that evacuation through this tunnel would reduce the dam break flood
magnitude significantly.111 As the ownership of the existing dam vests in Tamil Nadu, the
Committee suggested that it was Tamil Nadu’s responsibility to bear the expenses
involved in the construction of the new tunnel. It was also to conduct surveys and
feasibility studies for the new tunnel within a year. Even though Kerala was to have no
role in carrying out the feasibility studies and the construction of the new tunnel, it was
necessary to execute a MoU between Tamil Nadu and Kerala, before a representative
from the Ministry of Water Resources for the construction.
While in general agreement with the report and its conclusions, Justice K.T.
Thomas, expressed certain reservations. The judge felt that even though the Committee
found that the dam was safe, and under the 1886 Agreement Tamil Nadu had the right to
draw as much water as is available from the Mullaperiyar, this by itself was not sufficient
to permit an increase of the FRL from 136ft.112 This was so because a large number of
people including children living in the neighbouring areas of the Mullaperiyar dam are
mentally tormented as they genuinely feel that raising the water level will lead to the
destruction of the dam and their total annihilation as well.113 It was to assuage this fear
that has gripped the people living downstream of the Mullaperiyar that the Kerala state
legislature enacted the legislation to cap the height at FRL 136ft. As well, it was not the
case that irrigation in the farmlands in the five districts of Tamil Nadu were being

109
Id at 109.
110
Id.
111
Id.
112
Full text: Expert panel's report on Mullaperiyar Dam, supra note 100, at p. 111 (note from Mr. Justice
K.T. Thomas, Member of the Empowered Committee).
113
Id.

28
affected by not raising the FRL. Justice Thomas also focused at length on the inequity
inherent in the Agreement.
While agreeing with the findings of the Empowered Committee regarding the
safety of the structure, Dr. Justice A.R. Lakshmanan had serious reservations with regard
to paragraph three of chapter VIII of the report. He opined that since the dam was safe
there was no need to construct a new dam and that the Empowered Committee need not
be concerned with the future possible distress that the dam may suffer: the concern which
had led to the development of the two alternatives in the first place. He would have
preferred that the Empowered Committee end the report with these conclusions and not
proceed with making further suggestions or alternatives.114
In other words, Justice Lakshmanan was not agreeable to both the proposals (i.e.
the construction of a new dam or the tunnel, as the dam was completely safe). Again, he
also turned down the suggestion for joint regulation, which was suggested in the event
that the Supreme Court were to prefer alternative one (i.e. the construction of a new
dam). This he felt would only lead to “further confusion and friction between the two
States, both in maintenance and other related issues.” Moreover, the question of joint
regulation did not arise since in his opinion “all the water up to 155 feet belongs to the
State of Tamil Nadu as per the Agreement of the year 1886.”115 In sum, that is the
substance of the findings by the Empowered Committee. The Mullaperiyar dispute is
now at a very interesting stage. With the Empowered Committee having submitted its
report, already the hints are that it is going to be a battle of the sciences in the Supreme
Court. By now, Kerala has objected to the report disputing the technical data on which its
findings are based.
Contrary to popular perceptions in Kerala that the Committee completely sidelined
its viewpoints and was biased, the fact of the matter is that this Committee headed by no
less a legal scholar than a former Chief Justice of India, two senior judges, and two
experts did the best that they could do under compelling circumstance to provide light in
an otherwise dark tunnel. The Committee was cognisant of the fact that while the dam
may be safe for now, this does not camouflage the fact that it is an antique dam nearly

114
Id at 115.
115
Id at 114.

29
116 years old and that there is the possibility that it may fall into distress in the future. By
designing the two alternatives, the Committee practically gave effect to the precautionary
approach. Unfortunately, only Justice Lakshmanan failed to appreciate the need for long-
term precautionary planning for dam safety and also the need to strengthen the spirit of
co-operative federalism by practically rejecting the two alternatives proposed and also
frowning upon the idea of joint management, in the event a new dam were to be
constructed.

II. A FEW LEGAL ISSUES AND THE WAY FORWARD

The Mullaperiyar controversy is about two recalcitrant neighbours backed up by their
respective scientific evidence, holding extreme positions regarding how the safety of the
Mullaperiyar dam should be secured and how its waters can be used to produce greater
benefits. Tamil Nadu, on the one hand, insists that the Mullaperiyar dam is absolutely
safe and that it has taken all measures to strengthen the dam and that the water level must
be raised as per the terms of the agreement. On the other hand, Kerala, in line with the
slogan, “safety for Kerala and water for Tamil Nadu,” insists that the dam is unsafe and
that it must be decommissioned and that a new dam, downstream from the present one,
must be built. Both views are untenable and a solution must be found somewhere in the
middle, and it is in this context that the two alternatives suggested by the Empowered
Committee need to be considered. Before proceeding to examine these alternatives, it is
pertinent to understand some of the legal issues that this dispute raises.

1. Tamil Nadu is a Lessee

At the outset it must be pointed out that the legal issues thrown up by the Mullaperiyar
controversy are sui generis in nature as there is no element of water sharing and the
central element here is water transfer. All the waters at the Mullaperiyar are impounded
and conveyed in their entirety from Kerala to Tamil Nadu. The whole arrangement
revolves around a colonial lease deed and not a sale deed. Here, “. . . we have an absolute
proprietor carving out certain rights in favour of another, whose rights arise only
subsequent to, and solely out of, that act of the proprietor. . . . The grant being of the
nature of a lease, that is a limited grant, it is a case of the grantee taking such rights as are

30
given and the residuum of the rights continuing to reside in the original proprietor.”116
[emphasis supplied]. This aspect has been conveniently ignored in certain quarters that
harp time and time again that Tamil Nadu has ownership over the waters. While Tamil
Nadu may have usage rights over the waters, these usage rights flow from the terms of
the lease. Even though it has been using the waters for well over a century, since the
rights it enjoys are by courtesy of the lease agreement, any claim to prescriptive rights on
account of long usage must fail.117 In short, it must be stated in clear terms that Tamil
Nadu is only a lessee, while Kerala is the lessor and the true owner of the Mullaperiyar
waters and of the entire land that is the subject matter of the lease. A lessee cannot
enlarge the nature of the grant unilaterally and step into the shoes of an owner.
At the same time, this is not to suggest that Kerala can unilaterally terminate the
agreement. A former acting Chief Justice of the Madras High Court argues that the
principle of clausula rebus sic stantibus under international law applies to the
Mullaperiyar case. This principle of customary international law, which is now embodied
in article 62 of the Vienna Convention on the Law of Treaties, 1969 gives one of the
contracting parties the right to repudiate a treaty at any time without the risk of any legal
consequences if there was a fundamental change of circumstances.118 In view of the
recent developments regarding the safety of the dam structure, the chief justice argues
that the Mullaperiyar agreement would “stand abrogated” or “repudiated.”119 In the
landmark decision of the International Court of Justice in the case concerning the
Gabčíkovo - Nagymaros Project, Hungary relying on article 62 argued that:
a number of "substantive elements" present at the
conclusion of the 1977 Treaty ... had changed
fundamentally by the date of notification of
termination. These included the notion of "socialist

116
GOV’T OF KERALA, PERIYAR LEASE DEED, supra note 55 at 10-11.
117
Section 25 of the Limitation Act 1963 deals with acquisition of easements by prescription. The relevant
part reads thus, “… where any way or watercourse or the use of any water or any other easement (whether
affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an
easement and as of right without interruption and for twenty years, the right to such access and use of light
or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.” However
under section 2 (f), easement includes a right not arising from contract. In this instant case, the water rights
of Tamil Nadu arise from a contract.
118
Done at Vienna on 23 May 1969, entered into force on 27 January 1980, United Nations, vol. 1155,
Treaty Series at 331.
119
Special Correspondent, Intervene in dam issue, Krishna Iyer urges PM, The Hindu, 11 December 2011,
online: The Hindu <http://www.thehindu.com/news/states/kerala/article2704674.ece>.

31
 integration", for which the Treaty had originally
been a "vehicle", but which subsequently disappeared;
the "single and indivisible operational system", which
was to be replaced by a unilateral scheme; the fact
that the basis of the planned joint investment had
been over- turned by the sudden emergence of both
States into a market economy; the attitude of
Czechoslovakia which had turned the "framework
treaty" into an "immutable norm"; and, finally, the
transformation of a treaty consistent with
environmental protection into "a prescription for
environmental disaster".120

Rejecting these contentions, the court held the changed circumstances advanced by
Hungary were not of such a nature as to radically transform the extent of the obligations
that were yet to be performed to accomplish the Project. The court opined that a
fundamental change of circumstances should have been unforeseen. Moreover, to ensure
the stability of treaty relations it is necessary that the plea of fundamental change of
circumstances be applied only in exceptional cases.121 As far as the application of this
principle to the Mullaperiyar Agreement is concerned, it must be noted that article 62 of
the Vienna Convention has no relevance in domestic matters; it is applicable only to
international agreements that are concluded between sovereign states in written form and
governed by international law.122
The Mullaperiyar Lease deed of 1886, entered into between the State of Travancore
and the then Government of Madras, was practically on its death bed in view of changed
circumstances, but it was given a new lease of life by the 1970 Agreement which traces
its legitimacy to article 299 of the constitution.123 Essentially, this agreement is a
government contract, entered into between two state governments, which, apart from
constitutional principles like reasonableness, are also governed by the Indian Contract
Act, 1872.124 Therefore any attempt to re-work the agreement has to be within the

120
Case Concerning the GabCikovo-Nagymaros Project (HungarylSlovakia), Judgment, I.C.J. Reports
1997 at p. 7, para. 95, online: <http://www.icj-cij.org/docket/files/92/7375.pdf>.
121
Id. at para. 104.
122
Article 2.1(a).
123
See CONSTITUTION OF INDIA, Article 298 (providing that "[t]he executive power of the Union and of
each State shall extend to the carrying on of any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose").
124
State of Bihar v Majeed AIR 1954 SC 786.

32
confines of these legal frameworks, and, more importantly, it must be carried out in a
manner that does not deny the people of Tamil Nadu the Mullaperiyar waters which they
have been using for generations. Any attempt in this direction is a gross violation of their
basic human rights including article 21, which now guarantees, inter alia, the right to
drinking water and the right to live in a clean environment.125

2. Mullaperiyar is an Intra-State River

The next important and vexed issue is whether the Mullaperiyar is an interstate river. As
the former Minister of Tamil Nadu opines, “[t]he most important element that is missing
in this narrative is that Mullaiperiyar waters are not exclusively Kerala’s, but an inter-
State resource governed by the principles of inter-State rivers.”126 He argues that an
interstate river is one whose catchment lies in more than one state. Relying on the Water
Atlas of Kerala (1995), published by Centre for Water Resources Development and
Management of Kerala, he notes that out of the 5,398 square kilometers of the catchment
of Mullaperiyar, 114 square kilometers is in Tamil Nadu.127
Characterising the Mullaperiyar river as an inter-state rive has serious legal
repercussions. In the first instance, the obvious impact will be that the Interstate Water
Disputes Act, 1956 will apply,128 and a tribunal will have to be constituted to deal with
the dispute. Thereafter, section 11 will oust the jurisdiction of the Supreme Court and
other courts. Secondly, section 7 of this act will assume relevance, as it will practically
prohibit Kerala from collecting even the meager amount that it receives now in the form
of rents and levies. Section 7 declares that no state government shall impose, or authorise
the imposition of, any seigniorage or additional rate or fee (by whatever name called) in
respect of the use of such water by any other state of the inhabitants by reason only of the
fact that any works for the conservation, regulation or utilisation of water resources of an
inter-state river have been constructed within the limits of that state. As Tamil Nadu

125
See Tony George Puthucherril & Lekshmi Vijayabalan, ‘If there is no Drinking Water Let them Drink
Bottled Mineral Water,’ Analysing the Human Right to Water in the Milieu of Privatisation, (2004) 1
INDIAN JURIDICAL REV at 91.
126
Durai Murugan, Unwarranted fears on Mullaiperiyar, The Hindu, 31 December 2011, online: The Hindu
<http://www.thehindu.com/opinion/lead/article2761320.ece>.
127
Durai Murugan, ‘Periyar is an inter-State river', The Hindu, 4 January 2012, online: The Hindu
<http://www.thehindu.com/opinion/op-ed/article2772258.ece>.
128
Section 3.

33
graduates into the status of a riparian state, the lease agreement will become legally
defunct. The next issue relates to equitable utilisation of the waters, which will practically
be akin to opening a Pandora's box. Thus, the attempt to characterise the dispute as one
between riparian states is a sinister and dubious attempt to lay further claims to Kerala's
waters.
Even if a small part of the catchment of the Periyar river originates in Tamil Nadu,
it is doubtful whether this by itself is sufficient enough to characterise the Periyar as an
interstate river, as the river flows entirely through Kerala.129 Interestingly, the Inter-State
River Water Disputes Act, 1956 does not offer us any guidance as it has not defined the
term “inter-state river.” However, the Ministry of Irrigation and Power (predecessor to
the present Ministry of Water Resources) has defined an inter-state river as “… one
which flows through more than one state or which forms the boundary between two or
more states.”130 The Periyar does not flow through any part of Tamil Nadu and does not
form the boundary between Kerala and Tamil Nadu. As the dam is situated well inside
Kerala territory, the claim to riparian status must fail. Subsequent to this riparian claim by
the former Minister, the Centre for Water Resources Development and Management
clarified that the marking of certain parts of Mullaperiyar catchment as falling in Tamil
Nadu in the Water Atlas, on the basis of which the Minister made the claim, was an error
that it had corrected, and that this would be shown in the revised atlas after obtaining
clearance from the Survey of India. In short, no part of Mullaperiyar catchment is in
Tamil Nadu and the whole controversy revolves around an intrastate river.131

3. The Inequitable Colonial and Subsequent Agreements are Violative of articles 14 and
39 (b) of the Constitution
The third important aspect that needs consideration is that an inequitable colonial
agreement and all subsequent arrangements that bolster the original lease deed has no
place in a modern democratic set up based on the principles of social and distributive

129
See MINISTRY OF IRRIGATION AND POWER, supra note 8.
130
Id.
131
Special Correspondent, No part of Mullaperiyar catchment is in TN: CWRDM Director , The Hindu, 7
January 2012, online: The Hindu <http://www.thehindu.com/news/states/kerala/article2783258.ece>; see
also Ramaswamy R. Iyer, Safety will benefit Tamil Nadu, The Hindu, 2 January 2012, online: The Hindu
<http://www.thehindu.com/opinion/op-ed/article2766767.ece>.

34
justice and equity. In many ways, the Mullaperiyar controversy brings to the fore the
economic value of water. As pointed out earlier, Kerala is not utilising even a single drop
from the Mullaperiyar dam. Rather, all its waters are diverted to irrigate the fields in the
Vaigai basin in Tamil Nadu, to provide drinking water, and to generate power. In these
times of acute water scarcity, water is the primary natural resource that fuels economic
production and supports meaningful life.132
A popular perception is that Kerala is rich in water resources and that some of these
waters can be spared to satiate the demands of its water deficient neighbours, when the
fact is that despite receiving copious rainfall, due to certain geographical features the
water cannot be harnessed effectively and flows into the Arabian Sea. Surprisingly, the
per capita fresh water availability in Kerala is much less than the national average.133 For
the waters that are diverted via the Mullaperiyar, Kerala must be compensated to at least
a reasonable level for the loss of economic opportunities.134 It is estimated that while
Tamil Nadu earns about Rs.785 crores annually from irrigation and power generation by
utilising the Mullaperiyar waters, Kerala earns a paltry sum of Rs.13 lakh as rents and
royalty.135
The inequitable consequences that stand to befall upon Kerala, if the water level is
raised from 136ft. in relation to hydro-power generation has been discussed at length by
Justice K.T. Thomas in his separate note in the Empowered Committee Report, some of
which is worth highlighting here. Justice Thomas points out that if the FRL is increased
from 136ft., it will significantly impact the utility of the Idukki dam, which is a major
source of water for the different hydro-electric projects on which Kerala depends on for
its power requirements. Already, the FRL in the Idukki dam is very low, having never
gone beyond 54 TMC, when its actual capacity is 75 TMC (this is the reason that fuels
the argument that the Idukki dam will be able to capture the Mullaperiyar waters in the
event of a dam break). The main source of water for the Idukki dam is the rainfall from
the catchment areas in that part of the Western Ghats, which incidentally is also the

132
Puthucherril & Vijayabalan, supra note 125.
133
Tony George Puthucherril & Lekshmi Vijayabalan, Water Management Regulations: Craving for a
Change, Kerala Calling, 2002.
134
See Elias George, Sharing Kerala’s River Waters, THE INDIAN EXPRESS, July 7, 1999, at 4.
135
Mullaperiyar lease deed turns 125 on Saturday, Mathrubhumi, 28 October 2011, online: Mathrubhumi
< http://www.mathrubhumi.com/english/story.php?id=115958>.

35
catchment for the Mullaperiyar dam. Justice Thomas observed that if the water level were
raised still further, then it would lead to severe water shortages in the Idukki dam.136
Justice Thomas emphasised that by utilising the waters of the Mullaperiyar, of which
Kerala is the primary owner, Tamil Nadu has been generating electricity and earning
huge revenue and accordingly pleads that “[t]hat quantity of water beyond FRL height of
136ft. in MPD may be allowed to flow into Idukki dam which would help the real owners
of the water to use at least such excess portion for the benefit of the people of Kerala.”137
In sum, it is clear that Kerala has secured a raw deal from the Mullaperiyar water
transfer agreement.138 Unless and until the inequity is rectified and the safety issues are
properly addressed, this dispute will continue to simmer. At the same time, it must also
be noted that Kerala is a geographically small state and that land is a highly scarce
resource there. Agricultural production in the state has been in decline for the past several
decades. It is estimated that while Kerala requires about 38 lakh tonnes of rice per year,
the quantity produced is a meager 6 lakh tonnes. In other words, 84% of its food grain
requirements are met by other states, namely, Andhra Pradesh and Tamil Nadu. In this
context, it is the food grains and vegetables produced by the industrious agriculturists in
the Vaigai basin by effectively utilising the Mullaperiyar waters that practically feeds the
state and so it is also in Kerala’s interests that the quantities of water allocated under the
Agreement to Tamil Nadu be maintained, and the water levels increased, but not at the
cost of compromising on safety. In acknowledging these facts, and in accommodating the
legitimate interests on both sides of the state border, the Agreements will have to be re-
negotiated to reflect a more equitable foundation.
While not seeking to draw parallels since the parties stand on a different footing, it
is still worthy to point out that there are examples where sovereign nations have
renegotiated inequitable water sharing agreements. A case in point is the Kosi Treaty of
1954 and the Gandak Treaty of 1959, entered into between the sovereign nations of India

136
Full text: Expert panel's report on Mullaperiyar Dam, supra note 100, at p. 112.
137
Id.
138
Despite having copious water resources, the State is now facing extended spells of acute water and
power shortages. The Idukki hydroelectric project, the largest in the State, 50 km downstream from the
Periyar dam does not have enough water to utilise its full capacity. Except on rare occasions when there is
heavy rainfall in the catchment areas, no water flows down to Kerala from the Mullaperiyar. It is this which
might have forced Kerala to adopt a belligerent stance, with serious doubts being cast even on the validity
of the lease deed. See id at 34.

36
and Nepal, both of which had to be re-negotiated and amended (the Kosi was amended in
1966 and the Gandak was amended in 1964) primarily because they were initially heavily
loaded in favour of India to the detriment of Nepal.139 Viewing the Mullaperiyar
agreements from the prism of articles 14 and 39(b) of the Constitution, which mandates
equity, reasonableness, and, more importantly, the requirement that the ownership and
control of the material resources of the community should be so distributed as best to
sub-serve the common good, the colonial and subsequent agreements are definitely
violative of the constitutional prescriptions. This is so because the ownership and
distribution of the material resources of the community (i.e. the water, the hydropower,
the rents, levies, fishing rights) are all distributed in such a skewed manner that it
economically favours one segment of the Indian community at the expense of the
other.140 It should not happen that one section of Indians are made to suffer economically
to benefit another.

5. Exclusion of Kerala from the Management of the Mullaperiyar Dam violates Articles
14, 21 and the Spirit of Co-operative Federalism
The proposal for joint management by the empowered committee in the event the
Supreme Court approves a new dam is not a bad idea, and it can go a long way in
strengthening co-operative federalism in water management. Whatever happens at
Mullaperiyar has grave consequences for Kerala and this fact cannot simply be brushed
aside. There is already a good example in the matter of water sharing over the
Parambikulam Aliyar between Kerala and Tamil Nadu.141 The Tamil Nadu-Kerala Inter-
State Agreement on the Demising or Sharing of Waters of the Rivers in the
Bharatapuzha, Chalakudy and Periyar Basins, 1970 deals with the utilisation of the flows

139
D.N. Dhungel, et al, "Inudnation at the Southern Border" in D.N. Dhungel & S.B. Pun, eds, The Nepal-
India Water Resources Relationship: Challenges (Springer Science, 2009) at 269.
140
Centre for P.I.L. v. Union of India, Writ Petition (Civil) No. 423 of 2010 , SC, 2 February 2012. Natural
resources belong to the people but the State legally owns them on behalf of its people and from that point
of view natural resources are considered as national assets, more so because the State benefits immensely
from their value. The State is empowered to distribute natural resources. However, as they constitute public
property/national asset, while distributing natural resources, the State is bound to act in consonance with
the principles of equality and public trust and ensure that no action is taken which may be detrimental to
public interest. Like any other State action, constitutionalism must be reflected at every stage of the
distribution of natural resources. Id.
141
See Para. 5(d) of the KERALA-TAMIL NADU AGREEMENT ON PARAMBIKULAM ALIYAR
PROJECT, 1970.

37
of the tributaries of these interstate rivers, which originate in Tamil Nadu, flow through
Kerala, and finally empty into the Arabian Sea. Construction of weirs and reservoirs so as
to effectively utilise the waters by the two states in a manner beneficial to both is the
spirit of the agreement.142 Importantly, it also provided for the creation of a Joint Water
Regulation Board for the Parambikulam Aliyar Project System143 and in case of any
dispute, doubt, difference of opinion or question that might arise at any time between the
parties, the same was to be referred to arbitration.144 The Agreement was open to review
in light of the experiences gained at the expiry of thirty years. 145 This arrangement is
often considered as an outstanding example of inter-state cooperation between two
neighbouring states.146 Unfortunately, it has run into rough weather, eclipsed by the
otherwise strained water relations between Kerala and Tamil Nadu and the review of the
Agreement, which was to take place in 1988, but has yet to take place.147
Irrespective of whether we have a new dam or we continue with the old dam, tunnel
or no tunnel, provisions should be made for joint management of the dam by both states
with representatives from the Central Government on the joint management body to
ensure its continued safety. Excluding Kerala from the management of the dam violates
article 21 of the Constitution, which inter alia guarantees to all persons the right to life. In
the instant case, Kerala is constitutionally bound to protect the life, limb and health of the
people, who inhabit the state and the people downstream of the dam have serious

142
Schedule II of the Agreement apportions the water.
143
See id. at Schedule V.
144
Id. at Para. 5 (f).
145
Id. at Para. 5 (c)
146
ALICE JACOB ET AL., INTERSTATE WATER DISPUTES IN INDIA 20 (1971).
147
In 1993, an Adhoc Committee of the 9th Kerala Legislative Assembly with Late T.M. Jacob, former
Water Resources Minister was appointed as convener to study the Parambikulam and Mullaperiyar
agreements and its harmful effects on state interests. Interestingly, the Committee found that Tamil Nadu
had committed many violations. For instance, under the Agreement Tamil Nadu was to ensure 7.250 TMC
ft. of water annually at Manacadavu Weir for irrigating 20,000 acres in Kerala. However, since 1970 only
4.26 TMCft. of water was delivered by Tamil Nadu. Thus, the state was denied nearly 65.78 TMCft. of
water. Tamil Nadu has completely stopped water, resulting in the destruction of paddy crop in vast areas of
Chittur taluk, the rice bowl of Kerala. It was also found out that under para.2 of Schedule II of the
agreement Tamil Nadu was to maintain every year during the period from Sept. 2 to Jan. 31 the FRL in the
Kerala Sholayar Reservoir at 2,658 ft. However, as Tamil Nadu committed default Kerala lost the
opportunity to generate hydro power thereby causing considerable loss to the exchequer. The Committee
which expressed strong reservations regarding the legal validity of the Parambikulam Agreement as it
specifies no time limit put forward many suggestions to protect state interests. See generally ADHOC
COMMITTEE REPORT ON PARAMBIKULAM-MULLAPERIYAR WATER AGREEMENTS (9th
Kerala Legislative Assembly, 1994).

38
reservations about their safety given that it has long outlived its useful life. If Kerala is to
effectively carry out the obligations which it owes to the people who live downstream
(who are also entitled to the right to life under article 21), it is necessary that this state
must have a say in the management of the dam.
Even if we accept the findings in the Report of the Empowered Committee which
clearly states that the dam is safe for now, the pertinent question then is for how long?
Will the dam continue to function safely for another fifty years accommodating waters at
142ft.? The fact of the matter is that the life of the dam was just fifty years from the date
of its construction. Already, the structure has stood for nearly 116 years and it has served
the nation very well. Surely, stretching the life of an antique dam that will in all
probability hold more water may not prove advisable from a safety perspective. The
Empowered Committee recognised this aspect and it pointed out that:
Though according to the analysis of the
technical studies and other material, the MPD
(Mullaperiyar Dam) will remain safe, a
possibility cannot be ruled out that at some
point of time in future. In spite of requisite
upkeep of the Dam, it may suffer some distress
due to reasons beyond anybody’s control. In
that case, the dam may need
restoration/strengthening measures, which may
take years for implementation. It also might
need temporary evacuation of the reservoir level
to facilitate implementation of restoration.148

And it was this realisation that prompted it to suggest the two alternatives. For the
continued safety of the dam and for Kerala to fulfill its constitutional obligations, it is
necessary that the unilateral management of the dam be replaced by a joint effort.
Despite being decried for its “obstructionist attitude,”149 the fact is that Kerala has
given up significant opportunities to utilise its waters to help out its water deficient
neighbour.150 Both Tamil Nadu and Kerala have enjoyed very friendly water relations

148
Id at 106.
149
AIR 2006 SC 1428.
150
In sharp contrast, Punjab refuses to complete the construction of a canal to permit waters to flow to
Haryana. Under the 1955 agreement regarding the sharing of Ravi Beas waters, Punjab was entitled to 5.90
MAF (million acre feet). However, with bifurcation of Punjab into Punjab and Haryana, disputes arose
between the two states as to their respective share of water allocated to the erstwhile Punjab state. The 1976

39
promotive of cooperative federalism. They have water-sharing agreements for sharing the
waters of the Punnapuzha and Cholattipuzha, tributaries of River Chaliyar. 151 The
Siruvani Drinking Water Supply Project Agreement, 1973 entered into for a ninety-nine
year period envisages the diversion of water not exceeding 1,300 million cubic feet from
the Siruvani River to meet the drinking water supply requirements of Coimbatore and
adjoining areas in Tamil Nadu. Water from Kerala used to reach certain parts of the
Vilavancode taluk of Kanyakumari through the Kanyakumari branch of the River Neyyar
even though there is no written or formal agreement for the release. 152 However, most of
these arrangements are now running into rough weather. A recent issue has occurred over
whether the Neyyar is an interstate river or not. Therefore, it is necessary that both states
work together to restore the spirit of co-operation that has always characterised their
water relations, and the joint effort at Mullaperiyar can play an important role here.
At this juncture, it must also be pointed out that the primary roadblock that has
prevented the enactment of the Dam Safety Bill, 2010 is the issue of who should have
control over a dam in matters relating to safety? While the Bill confers jurisdiction on the
state in which the dam is situated to protect its interests related to the dam, Tamil Nadu,
which owns and operates dams in Kerala, wants the state that owns the dam to have
jurisdiction in such matters, irrespective of its locus. The best possible solution in such
cases is definitely joint management. One hopes that the Ministry of Water Resources
will amend the Dam Safety Bill in a manner that reflects this aspect as well.

notification allocated 3.5 MAF of the Ravi Beas water to Haryana. Being a non-riparian state, Haryana had
to draw its waters by digging the Sutlej-Yamuna link canal, which was to pass through Punjab and
Haryana. The Haryana portion of the canal was completed in 1980 but Punjab adopted dilatory tactics
postponing the construction. In the 1981 agreement it was stipulated that the canal construction was to be
completed within two years. Punjab also issued a White Paper hailing the agreement. However, in 1985
when a new government came to power they repudiated the 1981 Agreement. Later the Punjab Settlement
arrived at between the then Prime Minister of India and Sant Harchand Longowal, the President of Akali
Dal, provided that the canal would be completed by 1986. However the Canal still remains uncompleted. In
spite of issuance of a mandatory injunction by the Supreme Court directing Punjab to complete the work
within a year, Punjab still continues to adopt a belligerent stance on the issue. See State of Haryana v. State
of Punjab (2002) 2 SCC 507-41.
151
SUMMARY RECORD OF DECISION TAKEN AT THE INTER-STATE MEETING HELD ON 14th
OCT., 1965 BETWEEN THE GOVERNMENTS OF MADRAS AND KERALA REGARDING
CERTAIN INTER-STATE IRRIGATION AND HYDEL PROJECTS (i) PANDIAR – PUNNAPUZHA
AND (ii) CHALIPUZHA – CHOLATTIPUZHA SCHEMES. For the text see CENTRAL WATER
COMMISSION, GOV’T OF INDIA, AGREEMENTS ON DEVELOPMENT OF INTER STATE AND
INTERNATIONAL RIVERS 261-62 (1979).
152
See GOV’T OF KERALA, A REPORT ON POST FACTO EVALUATION OF NEYYAR
IRRIGATION PROJECT 1995-96 at 16 (1996).

40
6. Mullaperiyar is not a Precedent that should influence future River-Linking Projects
If the otherwise parched areas in the Tamil heartland today look green and fertile, it is
largely due to the effective utilisation of the Mullaperiyar waters.153 The proponents of
the river linking project often refer to the Mullaperiyar water transfer as an example of a
successful inter-basin transfer of waters, which can be repeated with the Pampa-
Achankovil-Vaippar Link. While Travancore was cognisant that conveying the
Mullaperiyar waters would definitely impact downstream activities, the science of the
time was not advanced enough to support detailed studies to understand the true nature of
these impacts, and so we remain ignorant of the ecological costs that the Mullaperiyar
water transfer has imposed on Kerala. Situated in the humid tropics, Kerala receives an
average annual rainfall of 3,000 millimetres, which is twice the national average.154
However, due to the steep and undulating topography, geology, soil vegetation and the
high density of the population, water availability is low.155 In fact, out of the total
average rainfall received by this state, it has been estimated that 85% of the rainwater
flows down to the sea as surface runoff.156 Consequently, the per capita fresh water
availability in Kerala is one of the lowest in the country, even lower than that of
Rajasthan, with fresh water amounting for 32.71% of the total water resources while the
remaining 67.29% is brackish water.157 These aspects need to be considered seriously
before proceeding with any proposal to interlink Kerala’s rivers to benefit Tamil Nadu.

7. Understanding the Role of Courts in Dam Safety

In the Mullaperiyar matter, Kerala has been consistently pleading for a new dam and it
has argued that the whole issue needs to be viewed from the prism of a precautionary
approach. Prior to understanding the centrality of this principle in ensuring dam safety, it
is necessary to understand the role of courts vis-à-vis dam safety. One of the issues that

153
See Krishnakumar, supra note 71.
154
K.K. Kunju Kunju Kutty, Rainfall over Kerala, KERALA CALLING, Apr. 2003, at 22.
155
Tony George Puthucherril & Lekshmi Vijayabalan, Craving for a Change, KERALA CALLING, Dec.
2001, at 15.
156
See Rebeccamma Thomas, Conservation of Rainwater and Development of Groundwater to Prevent
Drought in Kerala, 3 PROC. OF THE KERALA SCIENCE CONGRESS 6 (1991).
157
See DEPARTMENT OF IRRIGATION, GOV’T OF KERALA, STATE WATER POLICY 1 (1992);
see also KERALA STATE LAND USE BOARD, LAND RESOURCES OF KERALA 147 (1995).

41
came up before the Supreme Court in the Mullaperiyar was whether the jurisdiction of
the court was barred in view of article 262 read with section 11 of the Inter-State Water
Disputes Act, 1956. Rejecting all attempts to oust jurisdiction, the Supreme Court
categorically held that the dispute between Tamil Nadu and Kerala is not a ‘water
dispute’ within the meaning of section 2(a) of the Inter-State Water Disputes Act, 1956.
The primary issue involved here was not about the right of Tamil Nadu to divert waters
from the Periyar reservoir for irrigation or power generation, nor was the dispute related
to the lease. Rather, the dispute was all about the safety of the dam when the water level
is raised to 142ft. Determining the safety aspect, did not involve either article 262 of the
constitution or the provisions of the Inter-State Water Dispute Act, 1956. Clearly, in
holding so, the courts have affirmed their jurisdiction on matters relating to dam safety
and the important role that they can play in developing the contours of the dam safety
jurisprudence.
However, are courts competent to decide issues of dam safety that involve
questions of advanced science? It is well known that the Supreme Court of India and the
different High Courts have moulded a far-reaching and innovative environmental
jurisprudence and the manner in which they shaped its contours is something that is
firmly entrenched in the judicial folklore of this country. However, behind the bravado,
the superior courts have for a long time been experiencing considerable difficulties in
comprehending the correctness of technological and scientific opinions frequently being
brought before them in relation to environmental adjudication. Even in matters dealing
with dam safety, a seesaw of scientific opinions haunts the judicial process.
One of the earliest cases where an Indian court had the occasion to determine dam
safety in relation to dam construction is Tehri Bandh Virodhi Sangarsh Samiti v. State of
U.P.,158 which was a public interest petition filed to restrain the implementation of the
Tehri Hydro Power Project and the Tehri Dam, on the ground of non-consideration of
safety in locating the project on an earthquake prone site. The project was initially
considered by the Environmental Appraisal Committee, and on examining the geological
and seismic setting it concluded that the project should be scrapped. This report was then
discussed by the Committee of Secretaries, which constituted a High Level Committee of

158
1992 (SU1) SCC 44.

42
Experts to examine safety issues. The High Level Committee of Experts opined that the
design incorporated adequate defensive measures in accordance with the
recommendations of the International Congress of Large Dams. The Report concluded
that the Tehri Dam was safe and that the experts had considered the seismic potential of
the site. The Committee of Secretaries again considered this Report. Meanwhile, one Dr
V.K. Gaur, who was a member of the High Level Committee of Experts, and who had
earlier agreed with the unanimous report, put in a note of dissent. Accordingly, the
Government of India again referred the points raised by Dr. Gaur for further
consideration to the High Level Committee of Experts, which rendered a supplementary
report endorsing its earlier views. Dr. Gaur issued yet another dissent stating that the
opinion of the High Level Expert Committee was based on questionable grounds and
formulations and that the entire matter should be referred to an independent seismological
expert of international repute. In this circumstance, the Committee of the Secretaries met
and referred the matter to an independent expert seismologist, one Prof. Jai Krishna, who
concurred with the conclusions arrived at by the High Level Committee of Experts.
Nevertheless, the petitioners wanted the report of Prof. Krishna to be rejected and the
matter be referred to another seismologist as the dam was still in danger. In light of the
facts, which proved beyond reasonable doubt that the Union of India had considered the
issue of safety more than once, the Court dismissed the petition.
The following observation of the Tehri court is contextual on the nature of the
judicial process in such matters:

“[T]he questions relating to the design of the

dam, the seismic potential of site where the
dam is proposed to be constructed and the
various steps which have been taken for
ensuring the safety of the dam are highly
intricate questions relating to science and
engineering. This Court does not possess the
requisite expertise to render any final opinion
on the rival contentions of the experts. In our
opinion the court can only investigate and
adjudicate the question as to whether the
government was conscious to the inherent
danger as pointed out by the petitioners and

43
 had applied its mind to the safety of the
dam.”159

This dam safety dispute did not end with the Supreme Court judgement in Tehri, proving
the complicated nature of such disputes. The safety concerns were again brought up
before the Supreme Court in N.D. Jayal v. Union of India.160 Even after Prof.
Jayakrishna’s report, as a matter of abundant caution the government referred it to a
group of five experts, all of whom were suggested by Sundarlal Bahuguna, one of the
prominent leaders of the anti-dam movement. These five experts, carried out two key
exercises, and unanimously concluded that the design of the dam was structurally safe
and could withstand the maximum credible earthquake during its performance life.
However, as a matter of abundant caution, four of the experts suggested carrying out a 3-
D Non-Linear analysis of the dam and a simulated dam break analysis. The Government
of India again examined the recommendation with the Central Water Commission and
other bodies, and after considering different views, the Government finally decided that it
was not necessary to undertake further tests, and clearance was afforded to the project. In
circumstances of detailed consultations by the Government as a matter of “precaution”,
the Court cannot compel the Government, unless malafides, arbitrariness or irrationality
can be attributed to that decision. Furthermore, the role of the court in adjudicating
disputes of such a nature was explained thus:
This Court cannot sit in judgment over the cutting
edge of scientific analysis relating to the safety of
any project. Experts in science may themselves
differ in their opinions while taking decisions on
matters related to safety and allied aspects. The
opposing viewpoints of the experts will also have
to be given due consideration after full application
of mind. When the Government or the
concerned authorities after due consideration of all
viewpoints and full application of mind took a
decision, then it is not appropriate for the Court to
interfere. Such matters must be left to the mature
wisdom of the Government or the implementing
agency. It is their forte. In such cases, if the
situation demands, the Courts should take only a

159
Id.
160
2003 INDLAW SC 720.

44
 detached decision based on the pattern of the well-
settled principles of administrative law. If any such
decision is based on irrelevant consideration or
non-consideration of material or is thoroughly
arbitrary, then the Court will get in the way. Here
the only point to consider is whether the decision-
making agency took a well-informed decision or
not. If the answer is 'yes', then there is no need to
interfere. The consideration in such cases is in the
process of decision and not in its merits.161

Thus, it can be seen that the primary duty of the court when such matters are brought
before it is to ensure that the decision is not arbitrary and that it is not vitiated by
irrelevant considerations. Courts are not super-scientific bodies that can assess accurately
the exactness of scientific opinions, and it is to wriggle out of such situations that courts
developed the technique of referring technical matters to professional or technical bodies.
The Supreme Court made good use of this tool in the Mullaperiyar by constituting the
Empowered Committee, with a combination of judicial and technical personnel to
analyse the different safety dimensions brought to bear by this dispute. However, Kerala
is already disputing the technical data on which the Empowered Committee has based its
findings. Dam safety is a highly intricate issue of specialised science and calculations,
and the absence of judicially manageable standards to adjudicate such inherently
technical questions means that judicial personnel will not be able to satisfactorily resolve
these issues alone. This is the major point that carries through in the above discussion,
and as the disputes over dam safety increase in numbers, it may become necessary to
refer them to a specialised body comprising of technical and judicial personnel akin to the
National Green Tribunal.162

8. The Principle of Precaution is the Cornerstone Jurisprudential Principle for Dam

Safety
The conceptual origin of the precautionary principle can be traced to the rejection of the
‘assimilative capacity approach,’ which was premised on the assumption that the
environment has an inherent capacity to assimilate environmental damage to a certain
degree. This is best reflected in the axiom ‘the solution to pollution is dilution’. Pollution

161
Id.
162
See The National Green Tribunal Act, 2010.

45
beyond this frontier required legal intervention. It was also presumed that science could
accurately predict threats to the environment and provide necessary technical expertise to
tone down such threats.163 However, the inherent inconsistencies in this approach led to
the adoption of the precautionary principle.164 It was pioneered in German environmental
law as Vorsorge-Prinzipi, or the principle of precautionary action.165 The precautionary
principle involves a shift in priority in favour of a bias towards safety and caution, as it is
better to err on the side of caution and prevent environmental harm than run the risk of
irreversible harm.166 Fundamental to the application of this principle is the need for
anticipation and assessment of the possible outcomes of any planned action.167
In the context of our municipal law, the principle implies that the state
government and statutory authorities are to anticipate, prevent and attack the causes of
environmental degradation,168 and when there are threats of serious and irreversible
damage, lack of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation. Thus, it involves the taking of swift
measures to avoid environmental harm or choosing the least environmentally harmful
activity.169 An innovative offshoot of the principle is that the burden of proof in
environmental cases is shifted on to the shoulders of those who want to change the status
quo. In other words, the developer has to show that his/her action is environmentally
benign. The required standard of proof is that the risk of harm to the environment or to

163
Owen McIntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary
International Law, 9 J. ENVTL. L. 221, 222 (1997) (tracing the growth of the precautionary principle and
its crystallisation into a norm of customary international law); see also Principle 6 of the Stockholm
Declaration, 1972.
164
Article 11(b) of the World Charter for Nature 1982 states, “Activities which are likely to pose a
significant risk to nature shall be preceded by an exhaustive examination: their proponents shall
demonstrate that expected benefits outweigh potential damage to nature, and where potential adverse
effects are not fully understood, the activities should not proceed.” This was reiterated in Principle 15 of the
Rio Conference 1992, “In order to protect the environment; the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or irreversible damage,
lack of full scientific certainty shall not be used as a reason for proposing cost effective measures to prevent
environmental degradation.”
165
Peter H. Sand, The Precautionary Principle: Coping With Risk, 40 IJIL 1 (2000).
166
McIntyre & Mosedale, supra note 163 at 221, 222.
167
See id; see also Principle 17 of the Rio Declaration (“Environmental impact assessment, as a national
instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact
on the environment and are subject to a decision of a competent national authority.”).
168
M.C. Mehta (Badkhal and Suraj Kund Lakes Matter) v. Union of India (1997) 3 SCC 715, 720; Vellore
Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647; Jagannath v. Union of India (1997) 2 SCC
87.
169
M.P. Rambabu v. District Forest Officer AIR 2002 AP 256 at 271.

46
human health is to be decided in the public interest, according to the reasonable persons
test, and if the evidence presented by those attempting to alter the status quo is
insufficient, then the presumption should operate in favour of environmental
protection.170 This reversal of the onus is welcome since otherwise it is the victim who
bears the brunt of unsustainable environmental practices and also has the burden of
adducing evidence against the developer. Ordinarily, the principle and the corresponding
burden of proof apply to cases where pollution has been caused by projects or industries,
and the extent of the damage likely to occur is uncertain, 171 even though there have been
liberal interpretations extending this principle to cases where environmental aspects
concern ‘life.’172 The principle of precaution has great significance in matters relating to
dam safety and as the World Commission on Dams observed:
The precautionary approach requires States and
water development proponents to exercise
caution when information is uncertain,
unreliable, or inadequate and when the negative
impacts of actions on the environment, human
livelihoods, or health are potentially
irreversible. A precautionary approach entails
improving the information base, performing risk
analysis, establishing precautionary thresholds
of unacceptable impacts and risk, and not taking
actions with severe or irreversible impacts until
adequate information is available or until the
risk or irreversibility can be reduced, making
outcomes more predictable. Normally the
burden of proof will be on the developer.173

Narmada Bacho Andolan v. Union of India174 is one of the earliest cases where the
Supreme Court had occasion to determine the applicability of the precautionary principle
in the context of the establishment of a large dam from an ecological perspective. The
Supreme Court pointed out that the precautionary principle and the corresponding burden
of proof ordinarily apply to a polluting project or industry where the extent of damage

170
A.P. Pollution Control Board II v. Prof. M.V. Nayudu (2001) 2 SCC 62.
171
Narmada Bachao Andolan v.Union of India (2000) 10 SCC 664 at 727.
172
Bheemagiri Bhaskar v. Revenue Divisional Officer, Bhongir AIR 2001 AP 492 at 499.
173
World Commission on Dams, Dams and Development A New Framework for Decision-Making: The
Report of the World Commission on Dams (World Commission on Dams: November 2000) at 284.
174
(2000) 10 SCC 664.

47
likely to be inflicted is not known. However, where the effect on the environment due to
the setting up of an industry is known, what needs to be determined if the environment is
likely to suffer is what mitigative steps can be taken to offset the same. When the effect
of a project is known, the principle of sustainable development will come to play to
ensure that mitigative steps are taken to preserve the ecological balance. Accordingly, the
court held that while the construction of the dam would result changes in the
environment, a dam is neither a polluting nor a nuclear industry, and it is not correct to
assume that the same would result in an ecological disaster. The experience of forty years
in dam construction does not reveal that the construction of large dams is not cost
effective or that it leads to ecological degradation, rather in many cases it has led to
improvements in ecology. On this basis, the court refused to apply the principle of
precaution in the matter of dam construction vis-à-vis the ecology.
It is quite apparent that this reasoning has fundamental flaws. Admittedly, India has
considerable experience in dam construction. The fact remains that each ecosystem and
each river basin is unique, and consequently it is not possible to formulate a universally
acceptable standard design criterion that can be applied across the board. The
technological criteria for each dam is highly site specific as it has to take into account the
unique features of the ecosystems in that area. By not taking this vital aspect into
consideration, and by refusing to extend the scope of the principle of precaution to
encompass dam construction, it seems that the Supreme Court has provided the
government (the primary dam builder) with considerable leeway to escape from the
heightened degree of onus to prove that a particular dam construction activity is
environmentally benign.
At the same time, in matters of dam safety the Supreme Court has been more
cautious and has favoured the application of the principle of precaution even though the
role of the judicial process in analysing and adjudicating on the correctness of scientific
opinions, as pointed out earlier, is limited. One reason for this change in stance is because
if a major dam break were ever to happen, the destructive potential is comparable in no
less a degree to that of a nuclear disaster; a risk which no society will be willing to bear.
By practically extending the precautionary principle to the arena of dam construction vis-
à-vis safety, the court has laid the foundation for the development of a dam safety culture,

48
since those desirous of altering the status quo will have to discharge a heavy burden of
proof to demonstrate that the dam is safe. In both Tehri Bandh Virodhi Sangarsh Samiti
v. State of U.P. and its sequel, N.D. Jayal, the court was convinced that the dam builder
who wanted to change the status quo had taken several measures to ensure that safety
aspects were considered in all their dimensions (in line with the precautionary approach)
and it was only then that the court upheld the clearance. In N.D. Jayal, the court
expressed its happiness over the fact that the clearance to the project contained a
condition that a disaster management plan (the court described the plan as “blueprints for
the management of the disaster”) had to be prepared, which in this case was done and had
the approval of the concerned Ministry as well. The court even went on to hold that in
complying with the conditions attached to an environmental clearance in relation to the
setting up of a dam, it furthers sustainable development, which is an integral part of right
to life as guaranteed under article 21 of the constitution.175
In the Mullaperiyar matter, Kerala has all along been pleading that the safety of this
dam should be viewed from the prism of a precautionary approach. It placed reliance on
the said principle while pleading its case for a new dam before the Empowered
Committee,176 and here we have a curious case where one party wants a new dam, while
the other wants to raise the height of the dam to 142ft. In light of the technical and
scientific evidence, the Empowered Committee found that the dam was safe and that the
water level could be increased to 142ft. and that the proposal for a new dam needed
reconsideration. In other words, the precautionary principles were not followed.
Despite this, it seems that the precautionary approach is finding increased
recognition as a central yardstick in determining dam safety. Any legislative attempt to
provide an institutional framework for dam safety must be imbued in the precautionary
approach.

9. Possible Technical Solutions

The Empowered Committee chalks out two possible alternatives that may help the
Supreme Court to formulate a more endurable solution to the dam dispute. Since the dam

175
N.D. Jayal v. Union of India, supra note 14 at paras. 25 & 26.
176
Full text: Expert panel's report on Mullaperiyar Dam, supra note 100 at p. 102.

49
is safe for now, the question is do we still need a new dam? The construction of a new
dam that incorporates modern technological designs is definitely a more lasting solution.
However, the primary problem with this proposal is that it may take many years to
complete, and since the site for the new dam falls in one of the last remaining
biodiversity hotspots in the Western Ghats that houses the Periyar tiger reserve, it has to
be constructed in a manner that interferes as little as possible with the ecology of the
region. Furthermore, the decommissioning of the old dam, and removal of the debris
without interfering with the local ecology will all be uphill tasks that are easier said than
done. Going by past experiences, the dam construction at the Mullaperiyar should not
become an excuse for the timber mafia and poachers to make a windfall. Any new
proposal to construct a new dam must be under the strict supervision of the Central
Government through its ministries, namely, the Ministry of Environment and Forests and
the Ministry of Water Resources, and with equal participation of both Kerala and Tamil
Nadu, and thereafter the management of the dam should be on a joint basis.
The second alternative of constructing a new tunnel in addition to the earlier one
seems to be the more plausible solution for the present as it saves money and, more
importantly, there is less interference with the pristine ecology of the region. Even though
the expert committee has found the dam safe and has suggested that the water level in the
dam be increased, the second tunnel should be constructed to divert the waters as a
precautionary measure given the dam's age. In this context, the proposal by the Forum for
Policy Dialogue on Water Conflicts in India detailed in a letter addressed to the Prime
Minister is relevant.177 Presently, the Mullaperiyar is a storage reservoir and under this
proposal the nature of the dam must be changed - from a storage dam to that of a
diversion weir, with the consequence that the Mullaperiyar dam will no longer need to
occupy the present water spread area, thereby reducing its danger potential. To achieve
this, the water level should be kept low (at about 120ft.) and the rest of the water will be
delivered to Tamil Nadu, which will store the same in a series of reservoirs and other
storage mechanisms, and in the Vaigai dam. By doing so, safety can be ensured more
effectively, damage to the ecology will be minimised, and Tamil Nadu will still be able to

177
Letter, A Plan for Resolving Mullaperiyar Conflict, vol. XLVI no: 51, Economic and Political Weekly,
17 December 2011, at p. 4, online:
<http://www.indiaenvironmentportal.org.in/files/file/Mullaperiyar%20conflict.pdf>.

50
draw the water as much as they would draw at a level of 152ft. Even if we go with this
technical solution the management of the dam and the appurtenant structures must be
joint. As well, certain quarters in Tamil Nadu have always been suggesting that the
primary reason as to why Kerala is opposing the water level raise is to protect
encroachers on the water spread area of Mullaperiyar dam, many of whom have
constructed resorts and other buildings. An inquiry must be conducted and if found true,
all such encroachments should be removed and violators prosecuted.178

10. Need for a Dam Safety Law

Whatever may be the final outcome in the Mullaperiyar, the silver lining in the dark
clouds that have gathered over the cardamom hills in the Western Ghats is that this
incident has brought the issue of dam safety into national focus. In many ways, the
controversy is symptomatic of the nature of some of the future water disputes that may
arise between states. Currently, the majority of dam disputes relate primarily to issues of
land acquisition, displacement and rehabilitation, environmental assessments and
clearances, and conflicting claims regarding apportionment of the impounded water. With
more and more dams being built, and as more continue to surpass their useful life span
and require decommissioning services, dam safety will become a highly critical and
contested issue that may fuel more inter-state disputes unless and until effective legal
rules are developed to resolve safety concerns.
Dam breaks may happen due to an act of God or due to an engineering failure,
and in certain cases, to both. Whatever may be the trigger, the magnitude of its impacts
will be determined primarily by the institutional mechanisms set up to respond to safety
issues. Dam safety is absolutely non-negotiable and it requires that there be a cradle to
grave approach, and this will need consideration before we proceed with more ambitious
water infrastructural projects like river linking. Legislation on dam safety that
implements a precautionary approach is long overdue and it is in this context that one has
to view the Dam Safety Bill, 2010, which has been pending for a long time. For now, it
seems that the Mullaperiyar controversy has cast its lengthy shadow over the Dam Safety

178
Staff Reporter, Rumours being spread on Mullaperiyar dam: PWD, The Hindu, 11 December 2011,
online: <http://www.thehindu.com/news/cities/Madurai/article2706581.ece>.

51
Bill 2010, which has led to it being put at in the cold for now. Even if the din and fury
over the Mullaperiyar settles down and even if Parliament passes this law, the next hurdle
will be its acceptance by the states. This will also be a long, drawn out process.
Undoubtedly, with rights come responsibilities, and since the Government is the biggest
dam builder in India, it also has a duty to ensure that appropriate institutional
mechanisms, uniform standards, practices, and guidelines grounded in a precautionary
approach to dam safety are in place, all of which requires that the Dam Safety legislation
is enacted at the earliest.

CONCLUSION
Ever since the leaks were first detected and the Central Water Commission recommended
the lowering of the water level, the waters at the Mullaperiyar have been standing tall at
136ft. The water quantity at this level is now utilised to irrigate agricultural lands, for
drinking and for producing power in the Vaigai basin of Tamil Nadu. By increasing the
water level to 142ft, more lands can be brought under the plough, more power generated
and drinking water demands of even greater numbers can be met. However, all these
should not be accomplished at the cost of compromising safety to the people living
downstream of the dam in Kerala. It must not be forgotten that the rule of law assumes
sanctity only when it defends the rule of life of every human.179
Presently, the legal eagles in Kerala and in Tamil Nadu are digging in for a long
haul in the Supreme Court and it may take some more time before the court finally hands
down its decision. Irrespective of how the judicial pendulum swings, this will not be the
last that we hear of the matter. As alluded to previously, the Mullaperiyar dispute is
primarily a technical issue, grounded in law but which has been despoiled by the worst
form of divisive politics. This has rendered an amicable and acceptable solution that
satisfies both parties extremely difficult to come to. Still this is not impossible to achieve
and the two alternatives provided by the Empowered Committee contain elements for a
solution. To recapitulate some of the major suggestions that emerged in this paper: 1)
increase the height of the water level to 142ft.; 2) construct a new tunnel and take steps to

179
Special Correspondent, Krishna Iyer hails U.S. apex court ruling, The Hindu, 1 July 2012, online:
<http://www.thehindu.com/news/states/kerala/article3589068.ece>.

52
change the character of the dam from a storage reservoir to a diversion weir; 3) provide
for joint management of the dam; 4) place the dam under constant monitoring to ensure
safety, and initiate measures to build a new dam that interferes less with the biodiversity
of the area; 5) refer future dam safety disputes to more specialised bodies for
adjudication; 6) in all matters relating to dam safety, rely on the precautionary approach
as a guidepost for decision making; 7) re-negotiate the lease deed and provide a more
equitable basis for sharing the usufructs and benefits which the waters of the
Mullaperiyar offers; 8) enact the Dam Safety Bill at the earliest and provide for joint
management of dams that are owned and operated by one state but situated in another
state; and 9) ensure restraint on either side to promote a balanced solution.
It must be emphasised that the people of Tamil Nadu and Kerala share a common
Dravidian heritage, and are intrinsically linked in social, cultural, and economical
matters, and therefore it is in their best interests that the waters at the Mullaperiyar are
utilised in a manner that provides the most benefits to the greatest number of people in
both the states. Ultimately, rather than proving ones point, both states must work towards
ensuring that the Mullaperiyar dispute is not about winners or losers. Rather it is only
about one winner and that is the unity, integrity and prosperity of India and of all Indians.
As is often said, “those who do not learn from history are doomed to repeat it.” While the
Mullaperiyar dispute is really unique, the ramifications and the lessons that it offers
should be an eye opener to all other states in the Indian Union, to other nations that
follow the federal polity, and where the constituting states/provinces operate geriatric
dams, (particularly, those that service other states/provinces).

53