The urgent need to suo motu recall the judgment of a 5-judge bench in Mullaperiyar Environmental Protection Forum v. Union of India holding that the judgment of this Court of 2006 which holds that the Mullaperiyar dam is safe, is binding in perpetuity as res judicata, thereby putting the lives of more than 5 million people of Kerala in jeopardy.

Open Letter

To,

*Dr Justice DY Chandrachud*

Chief Justice of India

Also to,

The Hon’ble Judges of the Supreme Court of India

May it please your Lordships,

Sub: The urgent need to suo motu recall the judgment of a 5-judge bench in Mullaperiyar Environmental Protection Forum v. Union of India holding that the judgment of this Court of 2006 which holds that the Mullaperiyar dam is safe, is binding in perpetuity as res judicata, thereby putting the lives of more than 5 million people of Kerala in jeopardy.

1. This letter being addressed to the Hon’ble Chief Justice of India and the companion judges of the Supreme Court, ought to be extremely brief. However, the subject being complex and of such great ramifications, even if I tried to use telegraphic language, I am unlikely to succeed in my venture. The people of Kerala, particularly that of half a dozen districts, fear that the Mullaperiyar dam may collapse in the ensuing monsoons and if that happens, one-third of Kerala would be washed away.

2. Before I had read the judgments of the Supreme Court in Mullaperiyar Environmental Protection Forum v. Union of India of 2006 and State of Tamil Nadu v. State of Kerala of 2014, I did not have an idea of how grave and imminent the threat of the dam collapsing really is. Like common citizens, I also believed that the Supreme Court had twice reaffirmed that the dam is safe and that the apprehensions are ill founded.

3. When I read the judgment of the 5-judge constitution bench authored by none other than Hon’ble the Chief Justice R.M Lodha, I was shocked. Only then did I realise that the threat of the dam breaking is real and maybe even imminent and that those who had trusted the words of the Supreme Court have been betrayed.

4. The large-scale leak in the dam led to a PIL being filed by the Mullaperiyar Environmental Protection Forum in the year 2003 leading to a judgment at the hands of a 3-judge bench led by Justice Y.K Sabharwal. In the said judgment ((2006) 3 SCC 634), at Paragraph 30, the Supreme Court held that the in the event of the worst happening, namely, the dam breaking, the flood waters from the Mullaperiyar dam will flow to the Idukki reservoir and the Idukki reservoir which despite the copious rains is nowhere near its capacity, can absorb the flood waters.

5. The distance from the Periyar river to the Idukki reservoir is 56 kms. In this distance, there a number of townships such as Vandiperiyar, Upputhara. The Court missed the fact that if the dam breaks and the water gushes out and flows exactly through the Periyar river in the manner the Court has expected it to, it will still wash out many townships and millions of people. I would not blame the Court because it seems to be that nobody ever brought to its notice this manifest error. Nobody brought to the notice of the Court that if the dam breaks, the flood water will carry with it huge volumes of mud, trees, buildings and other debris in its path, which will lead to a situation of even the Idukki dam collapsing. The 2006 judgment of the Supreme Court was an unthinkable error and that led to a still greater error, namely, the judgement of the 5-judge constitution bench of 2014.

6. The dam is no static entity. Even a small tremor in the region can affect its stability, and certainly as years pass by its structural integrity would be adversely affected. The Kerala Government, for very valid reasons considered the 2006 judgment to be a grave error and took recourse to the legislative means to undo the judgment. The same came to be challenged by the Government of Tamil Nadu, leading to the judgment of the 5-judge bench in 2014.

7. From a reading of the two judgments, I am shocked to find that no study whatsoever has been conducted as to what manner the flood waters would flow. The 2006 judgment assumes that the flood waters will obey its opinion instead of the law of gravity. I had occasion to interact with one of the engineers who was part of the inspection team of the dam a few decades ago. He has prepared a map which shows that in the event of the dam breaking, the flood waters, going by the law of gravity and the topography of the region, would flow west and fall from a height of 860 meters from the ridges of the Western Ghats, nine times the height of the Niagra Falls. The impact of such a huge volume of water gushing from such a height with such immense force is difficult to be imagined.

8. The Constitution bench in unmistakable terms held that its judgment of 2006 is binding on the Kerala Government in perpetuity as res judicata. More than 6 pages, from Paragraph 161 to 183, go on to discuss the doctrine of res judicata and arrive at the conclusion that the Court’s decision of 2006 is binding on the Kerala Government as res judicata and cannot be reopened at all. The Court forgot the fact that the doctrine of res judicata which would mean that had the court held that 1+1=0, it is binding on the parties, cannot have any application in a matter such as the safety of a dam. The Court completely erred in comprehending this most fundamental principles of jurisprudence. For the doctrine to apply, the cause of action should be the same. Here, to repeat, the cause of action changes every moment. In 2006 the dam may have been safe, that need not be the case in 2014. In 2006, the Idukki dam was nowhere its full capacity, the same is not true today. It can no longer contain the flood waters. The doctrine of res judicata has no application.Sadly the court failed to notice that safety of the dam is not a justiciable issue at all, but is a matter of governance.

9. I am a lay man when it comes to the complexities of the safety of a dam. But so are the judges. The issue of safety should be left to the experts. I am not saying that a new dam is the only solution. My concern is the people of Kerala are living in fear and that needs to be addressed. It is therefore, imperative for the Court to recall its judgment of 2014 and to give a free hand to the Kerala Government to take the Central Government and Tamil Nadu into confidence to address the issue of the safety of the dam.

With respectful regards,

Yours Sincerely,

MATHEWS J. NEDUMPARA