1
THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES
Student: Hari Keshav Manohar
Roll Number: 1872
Semester: Sixth
Subject: Environmental Law
Topic: Legal Analysis of Mullaperiyar Dam and Judicial Developments
Teacher: Ms. Aryasree P.
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ACKNOWLEDGEMENTS
I express my sincere gratitude to The National University of Advanced Legal Studies for
enabling me to perform research work on this project, providing the necessary facilities, and
giving me the opportunity to complete it satisfactorily. I especially thank the Vice-Chancellor
of the University, Justice (Retd.) S. Siri Jagan, and the Registrar, Smt. Lina Acca Mathew. I
thank my teacher, mentor, and guide, Ms. Aryasree P. Ma’am, for providing me with the
essential guidance I required to work on the project in the right direction. I also take this
opportunity to thank my beloved friends. They extended their helping hand at various stages
of the research work and provided me with their valuable love and support.
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TABLE OF CONTENTS
HEADING PAGE NUMBER
Cover Page 1
Acknowledgements 2
Table of Contents 3
Introduction 4
Mullaperiyar’s place in a federal republic 6
Mullaperiyar Environmental Protection 8
Forum v. Union of India and Ors., 2006
SC offers Kerala an opportunity to blunder, 10
Kerala obliges
Conclusion 12
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INTRODUCTION
The Mullaperiyar Dam issue is one of the most contentious and controversial issues in
modern Indian politics. It is an issue which raises existential questions regarding the very
nature of the Indian federation. On the face of it, this issue may seem to be situated at a
commonplace intersection of constitutional and environmental law, but its cultural impact
goes a lot further than that.
The idea of diverting the Periyar waters to sustain the arid western hinterlands of Tamil Nadu
did not originate with the British. Princely states located on the Coromandel Coast had long
contemplated the idea. In fact, as early as 1789, the small princely state of Ramnad (which
would later sponsor Swami Vivekananda’s visit to America) pondered the possibility of
channeling the Periyar to water western Tamil Nadu. This idea was subsequently
contemplated by Captain J.L. Caldwell of the Madras Engineers in 1808. Caldwell’s chief
object was to supply Periyar river water to the British-controlled town of Madurai. However,
Caldwell gave the project up as impossible.
In 1850, the plan to build a Periyar Dam resurfaced, but it fell apart as any prospective
laborers demanded incredibly high wages to cope with their unhealthy living conditions. A
dozen years later, Captain J.G. Ryves (also of the Madras Engineers) carried out a study, and
in 1867 he submitted proposals to build a 62-feet-high earthwork dam across the Periyar.
This proposal ran into bureaucratic hurdles, and the famine that occurred in 1876-77
distracted the government’s attention. In 1882, the proposal was finally approved and Major
John Pennycuick of the Madras Engineers was appointed to lead the project.
A quick analysis of what we have read so far will tell us that the Mullaperiyar Dam was not
dreamt up and constructed in a day, but rather possessed a long scientific and technological
history. Furthermore, it is clear that for a period of seventy-four years between 1808 and
1882, the Mullaperiyar Dam project moved steadily forward thanks to the professionalism
and quality of the Madras Sappers. The Madras Sappers are one of the most famous
regiments of the Indian Army, and they possess a known track record of skill, intellect, and
brilliance. The two crucial Madras Sappers who made the Mullaperiyar Dam’s construction
possible were Captain Ryves (who came up with the engineering which made the
construction scientifically possible) and Major Pennycuick (who possessed the leadership
skills and common sense to oversee the successful construction of the dam).
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Any person, whether he be a Tamilian or a Malayali or of any other ethnicity, has to admit
that the Mullaperiyar Dam is a technological wonder. Almost thirteen decades old, it is a
masonry gravity dam which has allowed for the historically dry western districts of Tamil
Nadu to be made fertile and prosperous. This dam was able to tame the famous Periyar river,
and harness it for human use. There is no doubt that the Mullaperiyar Dam in and of itself is a
force for good, nor that it should be a powerful symbol of what a strong central government
can do for its people.
On October 29th, 1886, a nine-hundred-and-ninety-nine-year lease was executed between the
Maharaja of Travancore (in whose territory the Mullaperiyar Dam site was located) and the
British Secretary of State for India. We cannot pretend that this was a contract executed
between equals. On one side was the most powerful empire in the history of mankind, and on
the other was a tiny vassal state which could have been brushed off the map in seconds. The
contract between the British Madras Government and Travancore to lease the Mullaperiyar
Dam site is just as colonial and crooked as every other treaty entered into by British India,
including the ones which decided the modern-day borders of the northwestern and
northeastern frontiers of the subcontinent.
Having said that, the contracts entered into by British India do need to be maintained by its
successor state, the Republic of India; this is mainly because the Indian Republic likes and
relies upon the federal and centralized apparatus that the British constructed in India.
The Mullaperiyar Dam is famously constructed of limestone and “surkhi” (burnt brick
powder and a mixture of sugar and calcium oxide). In 1900, the Madras Government wished
to generate hydroelectric power from the dam. The Periyar Arbitration Tribunal was
constituted to decide the dispute; the Tribunal ruled that the Madras Government had no right
to use the waters other than for irrigation purposes, although subsequent negotiations laid
foundations for granting the Madras Government absolute rights over the dam’s water
resources.
Following the infamous floods of 1924, Superintending Engineer C.T. Mullings reported that
the dam was perfectly safe.
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MULLAPERIYAR’S PLACE IN A FEDERAL REPUBLIC
The dawn of Indian freedom on August 15 th, 1947, saw the princely states of Travancore and
Cochin dissolved and incorporated into the Indian Dominion as the state of Travancore-
Cochin. On January 26th, 1950, India became a republic with its own federal democratic
constitution.1 This constitution had to perform a careful balancing act between dozens of
former princely and colonial territories, and respect the rights and wishes of the thirty-crore
population of India. One of the first orders of business was to reorganize India on linguistic
lines, a demand which Congress had been promoting for decades. In 1956, 2 India was
subdivided into fourteen states, including Kerala (in whose territory the Mullaperiyar Dam
was located) and Tamil Nadu (whose western districts greatly benefited from the use of the
Mullaperiyar Dam).
In 1970, Chief Minister Achutha Menon agreed to renew the lease entered into between the
Travancore Maharaja and the Madras Government in 1886. This was a greatly controversial
decision made by an otherwise iconic and influential Chief Minister. I have been unable to
find any sources which could legitimately explain the thought process behind the Chief
Minister’s decision. I can only assume that in 1970, the dam’s safety was not thought to be
such a concern and after all, there had really been no reasons to raise any such concern over
the course of the three-quarters of a century that the dam had been standing.
The idea of the Mullaperiyar Dam3 as a possible danger really entered popular consciousness
with the collapse of the Morbi Dam in Gujarat in 1979. 4 In that situation, a seven-year-old
dam failed, leading to the death of more than eighteen hundred people. It was one of the
worst dam failures in the history of the world and naturally led to fears rising regarding the
Mullaperiyar Dam.
These fears, however, were not entirely grounded in reality. For one thing, the Morbi Dam
was an embankment dam built using mixed soil and rock, whilst the Mullaperiyar Dam is a
masonry gravity dam built using limestone and surkhi. Secondly, the Morbi Dam failed due
to the engineers’ inability to completely understand how to prevent overtopping in the case of
the Morbi Dam; meanwhile, so long as the water level remained fixed, the Mullaperiyar Dam
1
INDIA CONST.
2
The States Reorganisation Act, 1956, No. 37, Acts of Parliament, 1956 (India).
3
Jose K. George et al., Dam Break Hazard Mapping: A Case Study of Mullaperiyar Dam, 9(7) IRJET 499, 499-
501 (2022).
4
UTPAL SANDESARA & TOM WOOTEN, NO ONE HAD A TONGUE TO SPEAK: THE UNTOLD STORY OF ONE OF
HISTORY’S DEADLIEST FLOODS (Prometheus Books 2011).
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would be safe insofar as it had been expertly constructed with careful consideration of all
possibilities of failure. Furthermore, the Mullaperiyar Dam at the time of its construction was
the flagship engineering project of the British Madras Government, whereas the Morbi Dam
was just one of countless small dams being constructed in post-independence India.
Nevertheless, the central government was stirred into action following the collapse of the
Morbi Dam. The Centre for Earth Science Studies found that the Mullaperiyar Dam would
not be able to withstand an earthquake registering 6 or higher on the Richter scale. Again, this
is not quite as alarming as it sounds, since the entire state of Kerala falls within the Moderate
Damage Risk Zone for earthquakes and it is highly unlikely that an earthquake registering
higher than 6 on the Richter scale would occur near the Mullaperiyar Dam. The Central
Water Commission, following the Morbi Dam failure, found the Mullaperiyar Dam to be
safe.
Thus, the matter lay dormant for a further two decades. We pick up the threads of the saga in
1998, when Subramanian Swamy filed a Writ Petition (‘WP’) before the Madras High Court,
requesting directions that the water level in the Mullaperiyar reservoir be raised to 152 feet.
Almost simultaneously, a WP was filed before the Kerala High Court, asking for the water
level to be maintained at 136 feet. We can already understand the relevance of the
Mullaperiyar Dam issue to the health of the Indian federation by observing these opposing
WPs being filed in two different High Courts on the eve of the new millennium. In the
democratic federal India, arguments left the field of battle and instead followed the path of
litigation in the courts.
Thankfully, this was just the sort of situation where the federal Supreme Court (‘SC’) could
and should step in, as indeed it did.5 The pending WPs were combined and transferred to the
SC. Simultaneously, the Ministry of Water Resources set up an Expert Committee which
recommended raising the water level to 152 feet after strengthening the dam.
5
Mullaperiyar Environmental Protection Forum v. Union of India (UOI) and Ors., 2006 INSC 127.
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MULLAPERIYAR ENVIRONMENTAL PROTECTION FORUM V. UNION OF INDIA
AND ORS., 2006
In 2006, a three-judge bench of the Hon’ble Supreme Court of India sat to consider the
Mullaperiyar Dam issue. The bench included Hon’ble Chief Justice Y.K. Sabharwal, Hon’ble
Justice C.K. Thakker, and Hon’ble Justice P.K. Balasubramanyan. The bench was chiefly
concerned with the constitutionality or lack thereof of Section 108 of the States
Reorganisation Act.6
In the WP, the petitioner pointed out that increasing the water level in the Mullaperiyar
Reservoir was dangerous and the dam might not be strong enough to contain such a huge
volume of water. It was contended that the lease agreements of 1886 and 1970 were non est
in view of the establishment of the Periyar Tiger Reserve. It was further contended that
Section 108 of the States Reorganisation Act was illegal, as Parliament did not have the
legislative competence to enact such a law. It was also contended that increasing the water
level would adversely affect the flora and fauna in Periyar Tiger Reserve. The state of Tamil
Nadu resisted the WP and contended that the allegations had no factual basis and were
incorrect.
The SC held that the effect of Section 108 was that the agreement between the predecessor
states relating to irrigation and power generation, etc. would continue. The power of
Parliament to make law under Articles 3 7 and 48 is plenary and traverses over all legislative
subjects as are necessary for effectuating a proper reorganisation of the States. Thus, the
provision’s constitutionality was upheld.
The SC now examined the issue of the safety of the dam regarding the increase of the water
level to 142 feet. It had been submitted that the SC did not have jurisdiction to decide this
matter, but the SC explained that for determining this issue, neither Article 262 of the
Constitution9 nor the provisions of the Inter-State Water Disputes Act, 1956 10 would have any
applicability. The SC claimed that there was no substance in the contention that Article 262
6
The States Reorganisation Act, 1956, § 108, No. 37, Acts of Parliament, 1956 (India).
7
INDIA CONST. art. 3.
8
INDIA CONST. art. 4.
9
INDIA CONST. art. 262.
10
The Inter-State River Water Disputes Act, 1956, § 11, No. 33, Acts of Parliament, 1956 (India).
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read with Section 11 of the Inter-State Water Disputes Act barred the jurisdiction of the SC in
regard to the nature of disputes between the two states.
The SC held that Section 2 (17) of the Forest (Conservation) Act, which defines land,
includes canals, creeks and other water channels, reservoirs, rivers, streams and lakes,
whether artificial or natural, marshes and wetlands, and also includes boulders and rocks. The
SC said that it could not be said that forest or wildlife would be affected by carrying out
strengthening works and increase of the water level. On the facts and circumstances of the
case, the strengthening work of the existing dam in the forest could not be described as a non-
forestry activity so as to attract Section 2 of the Forest (Conservation) Act, 1980 requiring
prior approval of the Union of India, according to the SC.11
There are a few flaws in the 2006 judgement, to say the least. Firstly, studies carried out by
IIT Delhi and IIT Roorkee found the dam to be hydrologically and seismologically unsafe,
which the SC failed to take into account. Secondly, the SC placed heavy reliance on the
Expert Committee’s report which found the dam to be safe; the SC failed to critically engage
with the report. Thirdly, the SC seemed more focused on ecological concerns than the safety
of the forty-lakh people living downstream of the dam. Fourthly, nowhere in its judgement
did the SC mention the extreme danger that overtopping can pose to a dam, and how many
dam failures occur due to overtopping; this should have been an issue intrinsically wrapped
up with the discussion on raising the water level that the SC engaged in, but it was nowhere
even touched upon.
11
The Forest (Conservation) Act, 1980, § 2(17), No. 69, Acts of Parliament, 1980 (India).
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SC OFFERS KERALA AN OPPORTUNITY TO BLUNDER, KERALA OBLIGES
In 2006, the Niyamasabha passed the Kerala Irrigation and Water Conservation Amendment
Act,12 which fixed the Full Reservoir level at 136 feet. A Constitution Bench of the SC took
up the Mullaperiyar issue.13 The Constitution Bench ruled that Kerala is estopped from
questioning the lease agreement. The SC further struck down the Kerala Irrigation and Water
Conservation Amendment Act. The SC ruled that it was safe to raise the water level to 152
feet following the carrying out of strengthening measures. The SC declared that the Periyar is
an inter-state river and set up a Supervisory Committee to review the dam’s safety.
Unfortunately, Kerala committed blunders in both 2006 and 2014 when arguing its case
before the SC. In 2006, Kerala over-emphasised on ecological concerns instead of focusing
on the danger faced by forty lakh people. Following the SC’s 2006 judgement, Kerala
attempted to fix the water level by passing an unconstitutional statute. In 2014, Kerala
refused to make it clear that they would be happy with the entire waters of the Mullaperiyar
being used by Tamil Nadu in return for Tamil Nadu constructing a new dam. Kerala got “lost
in the sauce”. Kerala wasted its time on useless and unwinnable arguments regarding the
validity of the lease and the possible effects on the flora and fauna of the Periyar Reserve.
Kerala claimed that the SC had a lack of jurisdiction in the matter, which obviously would
not have made the SC look upon Kerala very favorably.
However, we cannot entirely blame Kerala for the adverse turn the Mullaperiyar case has
taken. Kerala blundered, yes, but these blunders would not have been fatal had the SC not
played hardball. Almost every step of the way, the SC seemed inclined to give the benefit of
the doubt to Tamil Nadu, and it never seemed that the SC focused on the danger posed to the
people of Kerala as much as it should have. What can explain this behavior on the part of the
SC? Well, on the one hand we have the SC’s adherence to the Nehruvian approach. 14 Prime
Minister (‘PM’) Nehru strongly believed that dams were key to India’s speedy development,
and so he pursued pro-dam policies throughout his sixteen-year tenure. His liberal and
modernist outlook filtered through to the judges, civil servants, and policymakers of
independent India.
12
The Kerala Irrigation and Water Conservation (Amendment) Act, 2006, No. 4, Acts of the Kerala Legislative
Assembly (Kerala).
13
State of Tamil Nadu and Ors. v. State of Kerala and Ors., 2014 INSC 373.
14
S.G. Sreejith, Dam Jurisprudence of the Supreme Court of India: Situating the Case of Mullaperiyar Dam
Dispute, 45(2) HASTINGS INT’L & COMP. L. REV. 129, 129-170 (2022).
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It is likely that this approach has also been adopted by the SC, and it can be seen that the SC
has always been reluctant to encourage discussion regarding the decommissioning of dams
and actually, no dam has ever been decommissioned in independent India.
Furthermore, unlike the Narmada15 and Tehri16 issues, which mostly revolved around the
possible ecological, displacement, and livelihood problems presented by the construction of
dams, the Mullaperiyar dam’s failure could possibly wipe four districts off the map. The SC
may not have fully appreciated this singular situation and the necessity for urgent pre-
emptive action, as opposed to providing adequate relief and remedies after the fact.
It has now been over a decade since the Constitution Bench’s judgement on the Mullaperiyar
issue, and the matter is once again before the Apex Court. The neighboring states of Kerala
and Tamil Nadu are once more locking horns, this time due to a series of interlocutory
applications (‘IAs’) and counter-affidavits filed by Tamil Nadu and Kerala in the wake of the
Constitution Bench judgement. The most recent order passed in this case was given on 19th
February, 2025.17 A number of petitions were filed regarding the Mullaperiyar issue in the
years following the declaration of the Constitution Bench judgement, and so the Apex Court
on 19th February 2025 decided to club the various petitions together and place them before
the Hon’ble Chief Justice so that he can decide before which bench they should be listed.
15
Narmada Bachao Andolan v. Union of India (UOI) and Ors., 2005 INSC 142.
16
N.D. Jayal and Ors. v. Union of India (UOI) and Ors., 2003 INSC 438.
17
State of Tamil Nadu v. State of Kerala, Diary No. 8520/2006, Record of Proceedings of Main Case, 19th
February 2025.
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CONCLUSION
The burning questions that face us today are what is to be done? And what is the way
forward? Research has clearly shown that the major danger any dam would ordinarily face is
that posed by overtopping, namely where an extreme or abnormal weather event leads to the
water level in the reservoir becoming dangerously high and flowing across the dam,
disrupting the delicate balance any dam must maintain to remain sound. This fact is
especially important in the context of the Mullaperiyar Dam, because the key debate going on
in the SC over the course of the last two decades regarding the dam has revolved around the
idea of raising the permissible water level limit in the reservoir.
The current maximum limit is 142 feet, a limit which has been reached with alarming
frequency over the last decade as the annual monsoon becomes ever wilder. 18 Since the SC
conditioned its direction to raise the water level to 152 feet with the stipulation that
strengthening measures first be carried out, the water level in the reservoir cannot currently
be raised to 152 feet. Fortunately, there has not yet been such severe rainfall in Thekkadi
which has not been able to be remedied by simply releasing the water. However, who is to
say that the day will not come when a severe monsoon strikes and the dam falls prey to
overtopping?
We should not appreciate the issue of the Mullaperiyar dam in a state of fear psychosis, but
rather understand the danger signified by the dam in the greater context of climate change
and the existential threat Kerala faces. If catastrophe strikes, neither Tamil Nadu nor the
Mullaperiyar dam will be solely to blame. Climate change has its own peculiar way of
striking home and that is the real danger.
With all that said, we can only hope that the Supreme Court takes a more alarmist approach
towards the Mullaperiyar dam issue in the ongoing case. Kerala should press for the
decommission of the Mullaperiyar dam and the construction of a new dam, which may then
allow the water level in the reservoir to be safely raised to 152 feet. The time for dawdling is
long past and seriousness should now take pole position. The situation on the ground has
moved quickly since the 2014 judgement was delivered, with the most notable incident being
the infamous 2018 floods. Climate change has progressed faster than we could have imagined
18
Special Correspondent, Water level at Mullaperiyar Dam touches 142 feet, fourth time since 2014, THE
HINDU (Nov. 30, 2021, 11:57 AM), [Link]
mullaperiyar-dam-touches-142-feet-fourth-time-since-2014/[Link].
13
and Kerala is in the firing line; the Mullaperiyar Dam which may not have failed in the past,
may well fail in the present and future owing to extreme weather events.
Considering all this, it is fortunate that the issue is currently before the Supreme Court and
Kerala has been given another chance to strongly argue its case. It would also be good if new
and unbiased studies could be carried out regarding the strength and structural integrity of the
dam. It will indeed be most interesting to see how the current Mullaperiyar dam case evolves
throughout 2025 and beyond, and it will also be fascinating to see if this ongoing legal
dispute has any effect on the impending legislative assembly elections which are due to be
held in 2026 in Kerala. It would be hoped that the two major political parties in Kerala
(Congress and the Communists) take up the Mullaperiyar issue as a matter of great
importance, and spread awareness regarding the same, whilst refraining from exaggeration or
false claims. The ball is now in the Supreme Court.