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Two States and a water issue by Ramaswamy R Iyer

This article seeks to explain the elements of the raging controversy over the Mullaperiyar dam for the information of the general reader. There are four distinct aspects to this case, and these are elucidated below.

(a) Extraordinary nature of the project: This is a project involving the eastward diversion of the waters of a west-flowing river, which has been celebrated as a gigantic feat of 19th century engineering. It was a major intervention in nature of a kind that is no longer much in favour. Was that feat of engineering necessary? Were there no other possibilities of development — less ambitious, less capital-intensive, less damaging to nature and wildlife, more local, less water-demanding — for the water-short districts in the Vaigai Basin? Such questions were probably not asked at the time. EIAs, the assessment of options, etc., are practices that came up much later. Be that as it may, the project was constructed and Periyar waters have been flowing to Tamil Nadu for over a hundred years.

(b) Sense of grievance in Kerala: Under the 1886 agreement between the former Madras Presidency and the princely State of Travancore, Travancore agreed to the diversion of Periyar waters to Madras Presidency, and to lease a piece of land (8000 acres) in its territory to Madras Presidency for building and operating the project designed for this purpose. The curious fact is that the lease was for 999 years. Whole countries and civilisations could have changed during that period! In Kerala, there is an almost universal feeling (right or wrong) that the 1886 agreement was an unfair one imposed on a reluctant Travancore by a more powerful Madras Presidency with the prestige and power of the British government behind it; and that while Madras (now Tamil Nadu) benefited substantially from the agreement, Travancore (Kerala) got little more than a negligible lease-rent for the land leased to Madras. In 1970, an increase in the lease rent was negotiated by Kerala but there was no radical revision of the totality of the agreement. In any resolution of the Mullaperiyar issue, some assuaging of Kerala's longstanding grievance will have to be an element.

(c) The dam safety question and the people's fears: Prima facie , dam safety does not seem a suitable subject for judicial determination. One wishes that the Supreme Court had told the two State governments to resolve the issue by amicable discussions, or to seek the intervention of the Central government. Alternatively, the Supreme Court could have directed the Inter-State Council, a constitutional body, to intervene and bring about an amicable settlement. Instead the learned judges decided to deal with the matter themselves, and appointed an Empowered Committee to examine and report on it. The Empowered Committee includes eminent experts but their opinion, even if the Supreme Court accepts it, may not necessarily be the final word on the subject, particularly if a different opinion is given by other equally distinguished experts outside. Under the circumstances, the sensible course would be for the two State governments, perhaps with the assistance of a joint committee of experts, to reach a reasonable agreement on the subject.

However, no expert can give an absolute guarantee of safety. The dam in this case is 116 years old, and even with all the strengthening measures, one can hardly be wholly confident about its safety under all circumstances. The recent tremors in the area might have been minor but no one can guarantee that a stronger earthquake will not occur, or that if it does the dam will withstand it; or that if there is an exceptionally heavy flood the dam will be safe. These are extreme and perhaps improbable situations but the point is that there can be no absolute unqualified guarantee of safety under all circumstances. That is true of all dams, and particularly so of ageing dams and of dams in seismically active areas.

Moreover, what the experts say may not allay the fears of the people downstream of the dam. To some extent those fears might have been accentuated by the statements of political leaders but they cannot be lightly dismissed as imaginary or paranoid. The people living in the shadow of the dam need to be reassured.

The remote contingency of a risk actually materialising may be acceptable in many cases, but unacceptable in a few. It seems to this writer that the risk in this case falls into the category of ‘unacceptable'.

Having regard to all this, it seems clear that this is a fit case for the application of the Precautionary Principle. This means that the authorities concerned must refrain from putting undue strain on the dam .

A further point is that with strengthening measures, the 116-year-old dam can perhaps be kept going for some more years but it must be presumed to be nearing the end of its useful life. Contingency plans must be prepared for the eventual phasing out of the dam. These must include alternative means of supporting economic activity and prosperity in the project-dependent areas in Tamil Nadu.

The Kerala government wants to replace the old dam by a new dam to be constructed 300 metres downstream. It is not clear that this will enable the continuance of flows to Tamil Nadu. In any case, the old dam itself was a horrendous intervention in nature, but it exists and we have to live with it; but there is no reason why the hubristic engineering of more than a century ago must now be repeated. If Kerala's objective is to escape from what it considers an unfair agreement, the proper course is to re-negotiate the old agreement, and not build a new dam.

(d) The concerns of people in Tamil Nadu: Whatever views one might hold on the nature of the project, the fact is that the people in the water-short Vaigai Basin areas in Tamil Nadu have been recipients of Periyar waters for over a hundred years, and must be presumed to have acquired some kind of a right of established use. The dispute regarding the safety of the dam has created a sense of uncertainty — in fact an acute anxiety — in the areas concerned in Tamil Nadu about continued flows. Thus, there are two vulnerabilities in this case: the life-security concerns of people in Kerala and the livelihood-security concerns of the people of Tamil Nadu. Both need to be addressed.

Pleas to all

Having regard to the foregoing analysis, this writer respectfully makes the following pleas to all:

To the two State governments or to the one concerned:

• tone down the rhetoric; don't take extreme, non-negotiable positions;

• don't build a new dam;

• strengthen the existing dam and operate it safely at a mutually agreed water-level; implement whatever safety measures the experts recommend;

• negotiate changes in the old agreement to remove the continuing sense of unfairness;

• reassure the people in Kerala on safety, and persuade the people in Tamil Nadu to accept a safe water-level behind the dam; bring about an agreement on this through amicable negotiations with the assistance of NGOs, eminent persons, etc;

• recognise that even with strengthening, the 116-year-old dam will not last forever, and plan for its gradual phasing out over a period of time; explore alternative ways of meeting the legitimate water needs of the affected population; minimise their dependence on waters from the Mullaperiyar dam through better water management, changes in cropping patterns, changes to forms of development that need less water, etc. (The Centre should assist Tamil Nadu in such adaptation efforts.)

To the people in both States:

• don't demonise each other;

• recognise each other's vulnerabilities;

• remember that the history has been one of inter-State cooperation and harmony; don't endanger that spirit.

To intellectuals, eminent persons, NGOs, the media, etc, in both States:

• educate public opinion;

• bring the people together; promote understanding and harmony; defuse the current tension.

Reassure the people in Kerala on the safety of Mullaperiyar dam, and persuade the people in Tamil Nadu to accept a safe water-level behind the dam. Bring about an agreement through amicable negotiations.