Water Wars in India’s South

Courtesy of K K Najeeb/CSE Environment Photo Library A view of the Mullaperiyar Dam in Idukki district of Kerala.

The “temples of modern India” was how an enamored Jawaharlal Nehru described the country’s dams. Today, the sentiment rings true insofar as these behemoths, much like India’s ancient temples, remain a source of never-ending wrangling. The Mullaperiyar Dam, a 112-year-old reservoir located on the Periyar River in Kerala, is no different. The dispute over the dam, distinct as it may be in its historic makings, is ultimately symptomatic of a festering federalist crisis in India.

The central government’s writ is no longer as powerful as it once was. In recent years, violent protests have emanated on either side of the borders of Kerala and Tamil Nadu, which enjoys the diverted water, threatening both trade between the two states and the welfare of their people.

In December 2011, Prime Minister Manmohan Singh said, “Given goodwill on both sides, an amicable and mutually acceptable solution can be found through a process of dialogue and communication.” But since then, even as the issue has continued to escalate, a hapless central government has looked on, incapable, and seemingly even unwilling, to broker peace.

According to Kerala, the dam is in a withering, parlous state. New tremors, to which the area is prone, could cause the reservoir to be brought down, endangering more than three million people. Tamil Nadu says that the dam is mostly invulnerable, and that Kerala’s assertions are hyperbolic and politically motivated.

Water diverted by the dam serves five districts in the south of Tamil Nadu and is indisputably critical to irrigation and the creation of power in the region. A new dam, if built further downstream on the Periyar, is likely to be incapable of trapping and diverting water into Tamil Nadu, putting much of the state in peril.

All of this and more are under contest in the Supreme Court, where the two states are presently locked in a battle of substantial legal intricacy. Any decision in the case, and its resultant consequences, may well tell us a thing or two about the future of Indian federalism: will India remain a potpourri of territories arranged together as states, or will it, as described in Article 1 of its Constitution, become a true “Union of States”?

The arrangements over the workings of the Mullaperiyar Dam are inimitable in that Kerala is the only riparian state of the Periyar River. Yet, Tamil Nadu enjoys all the water diverted by the dam. This apparent oddity, today a subject of a seemingly insolvable legal maze, has its genesis in an 1886 agreement between the British secretary of state for India and the maharaja of Travancore. The contract, seen by many, particularly in Kerala, as an upshot of subtle coercion, allowed the British the right to use the entire volume of water diverted by the Mullaperiyar Dam in British territory in exchange for a nominal fee. This right was used until 1947 to route water into what was then the Madras Presidency.

After India’s independence, Kerala, which came to represent what was earlier the princely state of Travancore, was seemingly under an impression of being bound by the 1886 agreement. In exchange for a revised rent, Kerala continued to allow Tamil Nadu to use all the water channeled by the reservoir, based first on a series of informal agreements and later, in 1970, on a formal agreement.

It is now far from clear why the maharaja of Travancore, or for that matter the government of Kerala, signed agreements that were so palpably unfair. But as Kerala’s own taps began to run dry, a sense of uneasiness soon stemmed from within the state. There was a feeling in Kerala that it had been gimmicked into giving away its water on the cheap. Even though Kerala maintains that it is loath to reneging on its commitment to supply water to its neighbor, Tamil Nadu believes that Kerala’s proposals to build a new dam could make the agreements academic. The foundations of the dispute between the states may have only concerned the height of the water level to be maintained at the reservoir, but it has slowly expanded into a larger, more elaborate examination on the validity of the colonial-era understandings.

In February 2006, after Kerala had reduced the water level in the dam in what was among its initial expressions of dissent, the Supreme Court, in its first ruling on the matter, ordered that the water be maintained at 142 feet. The standard, the court held, was in conformity with a report of a centrally appointed commission. But soon after, in a move that would help thwart the effects of the ruling, the state’s legislature amended the Kerala Irrigation and Water Conservation Act of 2003 in such a manner as to fix the maximum height of the water level in the reservoir at 136 feet. What’s more, the law established a Dam Safety Authority, which could potentially suspend the operation of the dam if found environmentally unsustainable â€" an option, which the state has since sought to have implemented.

Today, Tamil Nadu argues in the Supreme Court that the Kerala law traverses beyond the authority of the state’s legislature. Kerala counters that the 1886 lease and all concurrent and subsequent agreements are unlawful, and that within its territory it exercises an almost-sovereign power, allowing it the right to pass such legislation as it deems fit.

It is easy to see both sides of the argument. Several regions in the south of Tamil Nadu are hugely dependent on the Periyar River, so any decision that impinges on the state’s ability to exploit the water diverted by the Mullaperiyar Dam could prove ruinous. But Kerala’s position is far from untenable. It has thus far been foiled from accessing water from a river that almost entirely flows through its own territory, and to make matters worse, any destruction to the dam is likely to endanger millions of its people (a position that is, no doubt, contested).

A 2009 report by the Indian Institute of Technology Roorkee, shows that Kerala’s fears are not unfounded. An earthquake of a 6.5 magnitude, the report concluded, could damage the Mullaperiyar Dam at its presently maintained water level.

In times such as this, when the fiat of the central government runs so weak, how is the problem to be solved? If the agreements entered into by Kerala are, as suggested by the Supreme Court in oral hearings presently under way, a product of a mistake of law or fact and are therefore invalid, can’t Kerala’s legislature pass laws to govern its own water resources as permitted under the Constitution? After all, Kerala is the only riparian state of the Periyar River.

Although India was built on what was at the time a fragmented federal foundation, the Supreme Court in the years immediately following independence was careful not to recognize any form of “political sovereignty” inherent in the country’s states, according to Fali Nariman in his new book, “The State of the Nation.”

In its ruling in the State of West Bengal v. the Union of India in 1963, the Supreme Court was quick to recognize the central government’s primacy. Asked whether the central government, in exercise of its powers of eminent domain, could acquire territory belonging to one of the states, the court ruled in the affirmative. On behalf of five of the six judges who heard the case, the chief justice at the time, B.P. Sinha, wrote: “It would be difficult to hold that Parliament which is competent to destroy a state, is, on account of some assumption as to sovereignty of the state, incompetent effectively, to acquire by legislation property owned by the state for governmental purposes.”

To vest absolute sovereignty in the states, as Justice Sinha wrote, would run counter to the basic structure of India’s Constitution. While a normal corporate existence must allow states to enter into contracts and carry on trade and business as they deem fit, the central government must nonetheless maintain “political sovereignty.” The property of the states, under India’s constitutional framework, is not therefore immune from the operation of the center’s reasonable writ.

But given that today’s central government is unwilling to take a stance of any substance in interstate disputes, as in the case with the Mullaperiyar Dam, the sole dissenting opinion of Justice K. Subba Rao in 1963 could come to represent the laws of India’ future. States, wrote Justice Rao, should remain autonomous and legally sovereign within the contours of power allotted to them.

It is this premise that has occupied most of the important thoughts of the five-judge bench presently determining the dispute over the Mullaperiyar Dam. On June 23, Justice R.M. Lodha, who leads the bench, specifically questioned Tamil Nadu about its ability to seek rights from an agreement that was first struck between the princely state of Travancore and the government of India.

If no rights from the 1886 agreement devolve onto Tamil Nadu, can Kerala not exercise its “sovereign” right to legislate over a dam and a river contained within its territorial limits? The question attains an unnerving significance when one considers that the central government has had little of substance to say on the determination of a dispute that could have grave ramifications in the not so distant future.

If Tamil Nadu’s right to claim water from the Periyar River stands annulled, and if Kerala is allowed to build a new reservoir further downstream, the two states may, in theory, have to negotiate as separate “sovereign” entities to determine how the water ought to be apportioned. Such a scenario might be largely in keeping with true federalist principles, but consequently it would also signify a progressively weakening central regime. New Delhi’s ability to resolve disputes between states, which are no longer as dependent on the center as they once were, has never been weaker.

Suhrith Parthasarathy is a lawyer and journalist based in Chennai. He can be reached on Twitter @suhrith