Mullaperiyar: it's not about safety, but state sovereignty

A statement by Kerala’s advocate-general that the Mullaperiyar dam was safe and that, even if it did crack up, the water could easily be stored in other downstream dams, has punctured  the shrill claims of Kerala’s politicians. Reason: the crux of the Kerala case for building a new dam is that the dam is unsafe, and that it could not withstand an earthquake measuring more than six on the Richter scale. Millions of people were thus endangered. But DNA newspaper quotes Advocate General KP Dandapani as telling the Kerala High Court that there was no problem with the dam. Moreover, “even if the Mullaperiyar dam bursts, the entire water gushing out of the dam could be stored in the dams at Idukki, Cheruthoni and Kulamavu downstream.” [caption id=“attachment_147520” align=“alignleft” width=“380” caption=“Kerala has a right to dictate what it wants to do with it. wikicommons”]  [/caption] While Dandapani’s statement is sure to go down badly with Kerala’s livid politicians, it gives us a clue on what the real problem is: the issue is not safety, but control. Currently, control of the damn rests with Tamil Nadu, and Kerala’s proposal to create a new dam to replace the “unsafe” Mullaperiyar will essentially shift the control where it rightfully belongs: to Kerala. A good way to look at the problem is this: as the sovereign owner of the Mullaperiyar real estate, Kerala has a right to dictate what it wants to do with it. Anything located on Kerala soil is, by definition, something that can be legislated by Kerala – subject only to the courts and laws governing contracts. On the Tamil Nadu side, the issue is really the proposed breach of a corporate contract – not sovereign right over the dam and its water. Under the long lease agreement on Mullaperiyar, Tamil Nadu not only gets the water, but also the right to operate and maintain the dam – in other words, it controls the dam. While Tamil Nadu and Kerala are semi-sovereign states, Mullaperiyar is not a contract between equals, but between a sovereign and a contracting party. The dam predates the creation of the modern states of Kerala and Tamil Nadu – and hence neither state was a direct party to it. But after the states were formed, Kerala naturally has greater rights to its real estate than Tamil Nadu. An unconnected illustration would help clarify things. Let’s assume that India is opening up retail FDI and Wal-Mart buys land here. As the sovereign, India can decide tomorrow that Wal-Mart must pack up and seize the land. Wal-Mart may grumble about it, but when pitted against a sovereign, the counterparty’s rights are lower. At best, it is entitled to seek compensation for this forced divestiture. It can move the courts and argue about it. After all, India kicked out Coke and IBM in the late seventies and there was little they could do about it. India also nationalised banks twice (in the late 1960s and early 1980s) – and there was little the owners could do but protest. If we see the Mullaperiyar dispute this way – as a battle between a sovereign seeking to claim its territory and a contracting party - the following are the implications: One, Kerala has a right to control its water sources, and modify the lease. Two, Tamil Nadu, as the party that is being cheated out of a valid contract, has a right to demand fair compensation – whether in the form or water or cash or both. Of course, neither Kerala nor Tamil Nadu is a full sovereign power since they are part of one country – and their disputes will be settled in the Supreme Court. But the principle applies. Of course, there is always the possibility that safety is really the issue – but this can easily be settled by the appointment of impartial dam experts. There is no point in Kerala claiming the dam is unsafe by appointing its own experts, while Tamil Nadu trots out another bunch of experts to prove its case that the dam is safe. If safety is the only issue, there are easy solutions. But the probability is that Kerala is miffed about losing control of a dam on its soil. If this is the issue, the solutions have to be different.