Mullaperiyar row and Dam Safety Bill

In News

• The Supreme Court found in the Dam Safety Act of 2021 a panacea to end the “perennial” legal battle between Tamil Nadu and Kerala over the Mullaperiyar dam.

Background 

• The SC was hearing a petition that raised concern over the water level in Mullaperiyar Dam.
  • In the past, the control and safety of the dam, and the validity and fairness of the lease agreement of the Mullaperiyar Dam have led to disputes between Kerala and Tamil Nadu.
    • Kerala has accused the Tamil Nadu government of “sudden releases” of water several times in the past.
  • Origin of Issue: In 1979, a row erupted over the safety of the dam.
    • Consequently, in November 1979, a tripartite meeting chaired by the then head of the Central Water Commission, K.C. Thomas decided that water level had to be brought down from the full reservoir level of 152 ft to 136 ft, in order to enable Tamil Nadu to carry out dam strengthening works. 
    • By mid-1990, Tamil Nadu started demanding restoration of the water level in the Mullaperiyar as it had completed the task assigned to it. 
    • When no consensus was reached through negotiations, the Supreme Court was approached. 
    • In two separate judgments, in 2006 and 2014, the apex court held that the water level was raised to 142 ft.

Supreme Court Ruling 

• The court directed the Supervisory Committee to get to work as there was “an immediate need to specify the maximum water level in the dam” because of the rains.
• It directed all the authorities concerned to interact immediately on an urgent basis on the issue saying it has something to do with lives.

Dam Safety Act 

• Surveillance of dams: 
  • It provides for the surveillance, inspection, operation, and maintenance of all specified dams across the country. 
  • These are dams with height more than 15 metres, or height between 10 metres to 15 metres with certain design and structural conditions.
• 2 national Bodies:
  • The National Committee on Dam Safety (NCDS):
    • Its functions include evolving policies and recommending regulations regarding dam safety standards; 
    • It will be chaired by the National Water Commissioner.
  • The National Dam Safety Authority:
    • Its functions include implementing policies of the National Committee, providing technical assistance to State Dam Safety Organisations (SDSOs), and resolving matters between SDSOs of states or between a SDSO and any dam owner in that state.
• 2 state bodies: 
  • State Committee on Dam Safety, 
  • State Dam Safety Organisation.  
  • These bodies will be responsible for the surveillance, inspection, and monitoring the operation and maintenance of dams within their jurisdiction.
• Schedules of the act : 
  • Functions of the national bodies and the State Committees on Dam Safety have been provided in Schedules to the act .  
  • These Schedules can be amended by a government notification. 
• Punishment: 
  • An offence under the act can lead to imprisonment of up to two years, or a fine, or both.
• Article 252: 
  • Dams are a State Subject.
  • Article 252 of the Constitution requires a resolution from two or more states for enacting a law by Parliament on a subject which is in the state list.

Issues/ Challenges

• Against federalism: Act is a legislation passed by the Union through brute majority to blatantly usurp the States’ power.
• Centre’s control: Act usurped the power of the State governments and placed the operation of specified dams under the control of the Centre.
• Specified dam: Certain terms including the word ‘dam’ in the Act, had been deliberately defined vaguely to give unbridled power to the Centre to treat any dam as a ‘specified dam’.
  • If those definitions were followed, almost all dams in the country would fall under the purview of the Act.
• Entry 56 of Union list: The power of the Centre under Entry 56 of Union list was only with respect to inter-State rivers or river valleys and nothing more.
  • Entry 56 cannot be stretched to include dams and embankments exclusively within the control of the States.
• Confusion: Power over the subject ‘interstate river and river valley’ cannot be confused with the control over dams.
• Adverse impact: It would have an adverse impact on agriculture, fisheries, hydro power generation, and provision of drinking water to the people and so on.
• Criminal prosecution: Act provided for criminal prosecution for not obeying directives issued under the legislation. Bureaucrats will now be kept under fear and threat which will lead to mechanical compliance of the dictates of the Union Government.

Way Forward

• Judicial review: Reposing utmost faith and belief in the High Court that it would certainly annul the “unconstitutional” law by exercising the power of judicial review.
• Seventh schedule of the Constitution: Referring to Entries 17, 18 and 35 of State list of the seventh schedule of the Constitution, the petitioner contended that dams would squarely fall within the legislative domain of State governments.
• Dam safety: The State governments would be in a better position than the Centre to take a call on dam safety.
• Article 21: The Supreme Court had clearly held that water is the basic need for survival and is a part of the right to life under Article 21.

Source:TH