Mullaperiyar- fresh litigation will be ill-advised at this stage

Kerala Government plans to approach the Supreme Court yet again on the Mullaperiyar issue— this time over the alleged failures of the supervisory committee appointed by the Court to properly manage release of water from Dam through the spillways.

This is just an attempt by the politicians to buy time and hoodwink the public. The supervisory committee has representatives of Kerala and Tamil Nadu and Central Water Commission. The question of failure to issue timely warning before release of water through the spillways is a matter that the State government should be able to settle administratively, if necessary seeking intervention of the Centre. It will not be appropriate to agitate the Supreme Court now.

Moreover, it is not Kerala’s case that the Tamil Nadu did not warn it of impending release of water. There were reports that Theni Collector did so a few days ago. The complaint is that the Idukki Collector was not informed six hours before the release. Tamil Nadu apparently wanted to record that the water level touched 142 feet. When water level reached 141.9, it became imperative for Tamil Nadu to release water immediately as the inflow was very heavy. There needs to be an understanding on gradual release of water without waiting for the water level to touch 142 feet.

Kerala should also insist upon its lower riparian rights. The Expert Committee appointed by the Supreme Court had mooted construction of a tunnel to drain water into Periyar River downstream. This is also important from the point of view of safety. All modern dams have Bottom outlet tunnel which will facilitate emptying of the dam in case of an emergency—the Mullaperiyar dam does not have one, being one designed in the 19th century.

Every time Kerala has gone to Court over the Mullaperiyar issue, it has led to closure of its options. It has already lost its case that Tamil Nadu should raise the water level of Mullaperiyar beyond 136 feet only after exhausting storage at Vaigai Dam and that the spillway shutters should be opened gradually. In fact, when Kerala is arguing that the dam is not safe, it should be prepared for sudden release of water. This was what was lacking downstream of Mullaperiyar this Monday.

Kerala has failed to set up monitoring facilities it proposed on earlier occasions downstream of the Dam. Around 50 monitoring installations on the dam and reservoir, under control of Tamil Nadu, are reportedly not functioning. This is an issue that Kerala should be taking up legally or administratively. Even a modern dam without functioning monitoring equipment is unsafe.

Kerala had rushed to nullify a Supreme Court order of 2006 though legislation within weeks of the Court issuing the order. The legislature in its wisdom fixed the water level at 136 feet without building up supporting material. The Kerala Dam Safety Authority, which is a quasi judicial body, on the other had could have commissioned international studies on Mullaperiyar under the law and fixed the water level appropriately which would have been difficult to question before the Supreme Court.

When the Court quashed the law, Kerala suffered a multiple blow. Its arguments had led to the Supreme Court appointing a supervisory committee. As the supervisory committee of the Supreme Court is now managing the water level, it could put blame on Tamil Nadu only if it disregarded directives of the committee. Kerala will not even be able claim damages from Tamil Nadu for any losses caused by release of water or dam failure.

Kerala had ample time to prepare internationally acceptable documents on safety of Mullaperyar Dam from 2006 and even before. But it always rushed to do studies at the last minute. When safety of the people was paramount, one of the first studies it commissioned over a short span of time after 2006 was on submergence of forests and wildlife. (An analysis of errors in that study is available here. The author had to admit before Court that he had done a copycat job of work done by a State agency.)

Though there was an erroneous observation in the 2006 judgment (See Mullaperiyar- behind the veil.) that waters from Mullaperiyar would be contained in Idukki reservoir in case of failure of the former, Kerala failed to complete and produce the Dam Break Analysis before the Supreme Court in the case filed by Tamil Nadu challenging Kerala’s dam safety law.


 

Extract from judgment
Extract from the judgment of Supreme Court in ORIGINAL SUIT NO. 3 OF 2006 between Tamil Nadu and Kerala

Though the State Information Commission has ruled that this and other studies are public documents, the Principal Secretary of Water Resources Department has issued an illegal order against release of documents pertaining to the Mullaperiyar Dam as long as the issue is under litigation. Perhaps this is one reason why it wants another litigation.

As its strategies have failed so far, it is high time that it reconstituted the Mullaperiyar Special Cell with fresh talent and drew up fresh strategies.

For further reading:

Mullaperiyar: Kerala seeks review of Probable Maximum Flood

 

 

 

 

Legislation will formalise harthals

Harthal at ChalaiThe Government is proposing a legislation to bring restriction on organisation of harthals. However, it could very well end up being a piece of legislation granting political parties and other organisations a right to call for harthal. It is proposed that the organisers of harthals should announce it three days in advance.

The government could ban it if it is convinced that there would be the possibility of violence. Forced closure of shops and blocking of movements of people will attract imprisonment of up to six months or a fine of Rs. 10000 or both.

Harthal was a form of direct action devised by Gandhiji to protest against the colonialists and that too against acts like the massacre at Jallianwala Bagh. The Congress and its leaders, at that time, were totally committed to non-violence. Only a non-violent organization has the right to call harthal (none of today’s political parties could be classified as one). It is a non-violent mode of protest.

Nobody joins harthals willingly these days. Harthal, called by even minor political parties, is a ‘success’ because there is a threat of violence behind it. So, provisions in the proposed legislation such as one empowering government to ban harthals, if it is convinced that there would be violence, ignores the fact that harthal is inherently violent today. Such a provision will only be a political tool in the hands of successive governments. (Will a ruling party/front in the State ever be ‘convinced’ that there would be violence if it is a harthal against the policies of a Central government under a different party/front?)

So, action should be mandated against any political leader who makes a call for a harthal since threat of violence is inherent in such a call. If some people locally and spontaneously observe a harthal on their own free will over a murder or something like that, let it be countenanced. That is, harthal as such need not be banned, but making a call for harthal through mass media, public address systems and the like should be banned.

This automatically rules out proposals like announcement of harthals three days in advance. Even if such announcements are made, the hardship of people will only be diminished and not eliminated. Even for a journey to Bangalore these days by bus, one has to book a week in advance. (Train/air reservations are made months in advance). Harthal is not a suitable mode of protest in cities that work 24×7. The loss of lives, property and production caused by harthals is significant and will not be mitigated by a notice.

Forced closure of shops and forced restriction on movement of people are actually violation of fundamental rights. There are already provisions in the IPC and other laws to check such acts. Bringing fresh laws is not answer to failure of the government to enforce existing laws. In fact, there is a need to prune the statute book; but recommendations made by law reforms committee and commission are gathering dust.

The Supreme Court and the High Court, which are empowered to enforce fundamental rights even in the absence of laws, have already banned bandhs. The problem now is that the police are not taking cognizance of bandhs masquerading as harthals.

If at all a new law is to be enacted, it should be to define harthal/bandh and ban calling of harthals by political parties and other organisations with its inherent threat of violence. Fine of Rs. 10000 is insufficient as the damage caused by harthals is much more. Victims should be able to claim compensation separately for death, injury and loss of property. Express provisions should be included for this purpose. Provision should also be there for traders to claim compensation against those forcing closure of shops by violent means.

The Government should not formalise a ‘right to call harthals’ by providing for a notice procedure.

Hat trick by Oommen Chandy

Sabarinath with CM

K. S. Sabarinath (Right) with Oommen Chandy

It was a hat-trick victory for Kerala Chief Minister Oommen Chandy and the ruling Front in Aruvikkara Assembly constituency on Tuesday. The United Democratic Front (UDF) had won by-elections earlier at Neyyattinkara and Piravom after Mr. Chandy came to power in 2011.

The result indicates that Mr. Chandy’s mass contact strategy is still working though some might be disappointed by the unchanging face of bureaucracy. It also shows that the corruption charges against the government did not have the impact that the Opposition hoped for. The failure of the candidate put up by UDF dissident P. C. George to garner even one per cent of the votes perhaps underlines this.

The UDF had cleverly fielded a new face in the election instead of a seasoned politician. Now, almost every citizen know that politicians routinely take money from businessmen including bar and quarry owners for doing favours. But UDF candidate K. S. Sabarinadhan could not be grouped with them as he has not been in politics before.

Vote sharesHowever, it is notable that opposition parties, including BJP, and NOTA carried away a vote share of 56.87 per cent while UDF’s vote share dropped by 9.17 percentage points (from 48.78% to 39.61%.). The Opposition Left Democratic Front (LDF) suffered a loss of 7.1 percentage points (from 39.61% to 32.51%). NOTA polled one per cent of the votes. The vote share of BJP increased by nearly four-fold from 6.61 per cent to 23.96 per cent.

It showed that BJP could extend the advances it made in Thiruvananthapuram at least partially to neighbouring constituencies provided that it has the right candidate and political climate. BJP’s O. Rajagopal had won 33.3 per cent of the votes in the Lok Sabha polls from Thiruvananthapuram constituency in 2014. Now, he has won 23.96 per cent votes from a neighbouring Assembly segment.

This does not mean that BJP can duplicate the performance in the Assembly elections in 2016. It simply lacks candidates of the stature of Mr. Rajagopal to be fielded in other constituencies. It is also notable that Mr. Rajagopal’s popularity is not as strong as in Thriuvananthapuram in Aruvikkara. His appeal may have also diminished compared to the time of Modi wave and loss of popularity of Shashi Tharoor (who defeated him in Thiruvananthapuram).

However, the BJP’s performance is a clear warning to both the UDF and LDF. They will lose votes if people find an alternative, perhaps even NOTA, if they take the voters for granted. People are also not ignoring issues like development. The UDF lost a lead in Aruvikkara panchayat of Aruvikkara constituency over issues of local development. It won because BJP took away votes of LDF also. by-electionRelated Post:
Crucial battle for Oommen Chandy in Kerala

Crucial battle for Oommen Chandy in Kerala

The by-election from Aruvikkara constituency in Kerala is a crucial battle for Ommen Chandy government, beleaguered by corruption charges.
Chief Minister Oommen Chandy has taken it upon himself to win the election by fielding a novice. He has already addressed or interacted directly with half of the electorate in the constituency.

by-election

Finale of by-election campaign in Aruvikkara constituency in Kerala. Photos: Roy Mathew

A victory in Aruvikkara will enable Mr. Chandy to claim that his government still has people’s support. The ruling Front will be winning the third by-election after coming to power in 2011. (It had earlier won by-elections from Neyyattinkara and Piravom).

A defeat would show that support for government has slipped. This would encourage his detractors and he will face increasing pressure over corruption, questionable associations and misdemeanors of his Ministers and his own office. Though challenge to Mr. Chandy’s Chief- Ministership is not as strong as before, a defeat in the by-election can spell serious trouble for Mr. Chandy.

The campaigning is throwing out characteristics of a neck to neck race. However, the chances of the ruling Front (UDF) or Opposition Front (LDF) making a significant advance at the finish line could not be ruled out. The UDF candidate K. S. Sabarinathan, being a novice, has the advantage of being unblemished. The LDF candidate M. Vijayakumar, on the other hand, has to carry his own baggage. He faces an unusual situation of a counter affidavit having filed against his affidavit given as part of his nomination papers.

electionThis may be first time that a counter gets filed against an affidavit filed by a candidate. This could now become a trend in future elections.
The BJP candidate O. Rajagopal is sure to carry away a notable number of votes from the UDF and LDF kitty. He had been runner up in elections from Thiruvananthapuram.

His party’s vote share in Aruvikkara in the Assembly election of 2011 was only less than seven per cent. Mr. Rajagopal, who is popular around Thiruvananthapuram, and his foray into an adjoining area is sure to increase BJP’s votes.

Related links:
Kerala Assembly election database
By-election results: Neyyattinkara and Piravom

Governor redeems

Finance Minsiter K. M. Mani

Kerala Finance Minister K. M. Mani presenting the Budget for 2015-16 in the Assembly on March 13, 2015 amidst vandalism by Opposition

Kerala Governor P. Sadasivam has at least nominally redeemed the prestige of Kerala legislature by warning legislators about their conduct.

A former Chief Justice of Supreme Court of India, Sadasivam will not have failed to notice the obvious break down of not only Constitutional norms but also gross violation of democratic principles by the Opposition. There is no place for vandalism in legislative bodies in a democracy. However, reaction from opinion leaders was generally muted while the ordinary people on the social media could do nothing more than lampooning the politicians.

The Governor’s remark that the happenings on the floor of the Assembly on Friday (March 13, 2015) may even justify submission of a report by the Governor to the President under Article 356 of the Constitution of India is a rebuke to both the ruling and Opposition fronts. What the Governor hints is the vandalism of the kind in the House amounts to Constitutional break down warranting dissolution of the Assembly.

The Speaker N. Sakthan could not maintain even a semblance of order in the Assembly because of his reluctance of use force. Normal practice in the House is to use the watch and ward to cordon the podium of the Speaker as soon as the Opposition starts disruption of proceedings. On Friday, the Opposition had started their protest even before the House was called into session. Speaker probably hesitated because he was new to the Chair and did not want to start with a direct confrontation with the Opposition and become a direct target of the Opposition in the coming days.

The Opposition leaders had gone to the Governor saying that the presentation of the Budget was not in order, after creating all the disorder. The Governor has indirectly rebuffed them by accepting the Speaker’s stand that the Budget was duly presented. The Speaker could not be seen as conducting the business of the House during the bedlam created by the Opposition who had also practically gheraoed the Speaker and thrown his chair off the podium in gross disregard to the prestige of the House and its privileges. (The procedures adopted in the House for presentation of the Budget could be irregular but could not be challenged in a court of law. The House is the final arbiter of its own procedures).

The Governor, who himself is part of the Assembly as head of the State, has hinted that the further proceedings on the Budget including passing of the demands for grants on account and Appropriation Bill should be done in an orderly fashion. He may not condone total absence of order and decorum.

 

The politics of green politicians in Kerala

The green brigade in the UDF in Kerala is striking a distinct position compared to rest of the members of the Assembly in the Front. They have also started using the new media for their campaign.  (T. N. Pratapan, V. D. Satheesan, V. T. Balram and Hibi Eden (Congress) K. M. Shaji  (Muslim League )and  M. V. Sreeyams Kumar (SJD) are blogging at GreenThoughtsKerala)

Title image of blog of the MLAs

Title image of blog by V. D. Satheesan, T. N. Pratapan, M. V. Sreeyams Kumar, V. T. Balram, K. M. Shaji and Hibi Eden

The scenario in the Assembly has been changing over the past decade with more members coming forward to propound the cause of environment. The Legislative Committee on Environment has over the years produced well-studied reports. Two decades ago, K. V. Surendranath of CPI was the only member campaigning for environmental causes. On the other side people like Seethi Haji (IUML) asked how it rained at sea if forests were required for precipitation.  Now, there are several members both in the ruling and Opposition fronts wanting to protect the environment. They include Opposition Leader V. S. Achuthanandan who once spoke against environmentalists.

However, a question would arise as to how deep their commitments are.  Are they simply moving with the tide or playing politics? It is notable that almost all members of the green brigade are people who had missed out on ministerial positions. They have an axe to grind against Chief Minister Oommen Chandy and other UDF leaders.  And they know that fighting corruption from within a la Achuthanandan has a market. Yet, that does not make the causes they are expounding less important.

Yes, they are indeed playing politics and it is notable that Mr. Chandy and industries Minister P. K. Kunhalikutty are in the defensive.  Mr. Chandy even said that they are doing the campaign because they are sincere.  May be, people can trust them more than Mr. Achuthanandan who is also expounding the same causes.

If they are sincere, they will persist. Mr. Achuthanandan forgot many of the causes he expounded when he came to power. The litmus test for green politicians of UDF too would be what they do when they come to power.

Update: Well, we did not have to wait until they come to power to know how steadfast they would be on their views. The green politicians are now supporting tourism projects such as that proposed in Nelliyampathy disregarding questions whether the land proposed to be used for such projects are forests or environmentally fragile areas. They do say that they changed their stand because Chief Minister Oommen Chandy has conceded their demands including environmental impact assessment of all projects under Emerging Kerala initiative.

Prerogative of the legislator to be out of jail

Should it be the prerogative of the legislator who is in police or judicial custody or serving a sentence to attend the legislature?

G. Mohan Gopal

G. Mohan Gopal, Director, Rajiv Gandhi Institute for Contemporary Studies, New Delhi, delivering the lecture in Trivandrum

G.  Mohan Gopal, who delivered a lecture on “Parliamentary Prerogatives and Judicial Activism”  in connection with the Diamond Jubilee of Kerala Legislature here on June 7 said that the judiciary was not according sufficient protection to legislators from arrest and denial of opportunity to represent their constituency in the legislature.  What Dr. Gopal is saying is that people like DMK leaders Kanimozhi or A. Raja should have been allowed to attend Parliament while in judicial custody or should have been released from jail.

It is notable that the courts did not grant bail to the accused for fear that they would interfere with the investigation and influence witnesses.  Suppose that R. Balakrishna Pillai who was condemned to undergo one year’s imprisonment was a member of the Assembly. What would be the justification for sending him out of jail to attend an Assembly session?  We know that it is difficult to successfully prosecute a politician in India and even if he is sentenced, it has been found to be difficult to keep him in prison.

Dr.Gopal’s argument is that legislators represent the people and their voice should be heard in the legislature. Well, people elect politicians despite their knowing about their criminal background. Doesn’t that mean that they want criminals to represent them? If we accept that argument, it would undermine basic tenets of rule of law.

Then, why do people elect criminals? Dr. Gopal said that legislatures and judiciary exercising power to punish for contempt was a result of feudal and colonial mindset.  In India, many are still to imbibe the concept that all are equal below the law.  The caste system, which prescribed differential punishment for the same crime depending on caste and the principle of dynastic succession still influence Indians. That is why they countenance and make arguments in favour the like of Kanimozhi.

Even six decades after independence, we have not freed ourselves of feudal, colonial and casteist mentalities and related belief in merit of dynastic succession.

Honouring Yesudas, Is Assembly Setting a Bad Precedent?

The Kerala Assembly honours playback singer K. J. Yesudas on Wednesday. That Yesudas is meritorious to receive honours is unequivocal. However, the Assembly may be setting a bad precedent.

The danger here is that the practice of the House honouring eminent persons could become something like the universities awarding honorary degrees. Many an unworthy persons receive honorary degrees with universities having to bear various kinds of pressures. The Assembly too is sure to come under pressure for honouring persons under influences that may not always be honourable.

K. J. Yesudas

K. J. Yesudas

These days we see communal organisations competing each other for issue of commemorative stamps. There are not many complaints because the postal department is liberal in the issue of such stamps.
However, the Assembly cannot be liberal like that. Questions can still arise why the Assembly is honouring a popular singer and not the well known exponents of classical music or arts. Will the Assembly be honouring people from other fields such as literature?

It is true that the House has honoured past members and journalists on occasions like its jubilee. However, the connotation that the House was honouring someone was almost absent as it was considered part of the celebrations rather than connected with the business of the House. Besides, those honoured were someway associated with the functioning of the Assembly though journalists are technically strangers as far as proceedings of the House are concerned. Now, the occasion for the House deciding to honour Yesudas is that he is completing 50 years of his illustrious career as professional singer this year.

One should recall that there was even opposition to civilian awards. The Janata Government headed by Morarji Desai had discontinued the Bharat Ratna, the Padma Vibhushan, the Padma Bhushan and the Padma Shri awards in the late seventies. Though it was restored three years later by then Prime Minister Indira Gandhi, the choice of winners continued to attract criticism despite the government having a system and machinery to make the selections. How is the Assembly going to make better choices if it plans to honour more people?