In a jolt to the Kerala government, the Supreme Court Wednesday struck down the 2006 Kerala act that has sought to restrict the water level in Mullaperiyar dam at 136 feet.
A constitution bench of Chief Justice R.M. Lodha, Justice H.L. Dattu, Justice Chandramauli Kumar Prasad, Justice Madan B. Lokur and Justice M.Y. Eqbal said: "It is declared that the Kerala Irrigation and Water Conservation (Amendment) Act, 2006 passed by the Kerala legislature is unconstitutional in its application to and effect on the Mullaperiyar dam."
Striking down the act, the court restrained Kerala from applying and enforcing the struck down law and interfering or obstructing in any manner Tamil Nadu from increasing the water level to 142 ft. and carrying out the repair works as per its Feb 27, 2006 judgment.
Holding that there was no apprehension about the safety of the 120-year-old Mullaperiyar dam, Chief Justice Lodha, speaking for the bench, said: "However, to allay the apprehensions of Kerala – though none exists – about the safety of the Mullaperiyar dam on restoration of the full reservoir level (FRL) to 142 ft, a three-member Supervisory Committee is constituted."
Addressing the question whether a legislature could pass a law or amend it to nullify the court judgment as was done by the Kerala act, the court said: "The doctrine of separation of powers applies to the final judgments of the courts. Legislature cannot declare any decision of a court of law to be void or of no effect."
"The law enacted by the legislature", the court said "may apparently seem to be within its competence but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers.
"In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction," the court said.
The court said that legislature can, however, pass an amending act to "remedy the defects pointed out by a court of law or on coming to know of it".
Spelling the role of the three member committee, the court said that it will supervise the restoration of FRL in the dam to 142 ft would comprise a representative of the Central Water Commission (CWC) , and a representative each from Kerala and Tamil Nadu.
The Committee, that will have the office of its choice in Kerala and its expenses borne by Tamil Nadu, will be headed by the representative of the CWC.
It would inspect the Mullaperiyar dam periodically, particularly immediately before the onset and during the monsoon, and would keep a close watch on its safety and recommend measures which are necessary.
"Such measures shall be carried out by Tamil Nadu," the court said.
The court said that the committee would take "appropriate steps" and issue "necessary direction" to both Kerala and Tamil Nadu or any one of them for the safety of the dam in an emergent situation and same shall be obeyed.
Tamil Nadu would be allowed to "carry out further precautionary measures that may become necessary upon its periodic inspection of the dam in accordance with the guidelines of the Central Water Commission and Dam Safety Organisation".
The apex court's verdict is a setback to Kerala's efforts to pull down the dam on the grounds of it being unsafe and then build a new dam.
