Thursday, May 22, 2014

Counter-Terrorism - POTA Style

                In its judgment dated 16th May 2014, on the Akshardham terror attack case, the Supreme Court of India stated that the “POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police” (Para 73, Emphasis mine). POTA or the Prevention of Terrorism Act was infamous for its provisions that allowed the Police to use draconian powers, to frame innocent people as terrorists. Police has to merely obtain a confession from the suspect, and that confession will be sufficient proof to even award death penalty to the suspect. No doubt, the law demanded corroboration of such confession made to a police officer under POTA. In the above referred judgment pronounced by Supreme Court after hearing the appeal against concurrent judgments of conviction from the POTA court and Gujarat High Court, it was noticed that the corroboration was achieved by more confessions obtained from persons who claimed to be accomplices of the accused. 
                At least some of the readers might be wondering why the Supreme Court decided to set aside the death penalty awarded to three persons and life/rigorous imprisonment to another three, in such a notorious case as terrorist attack of Akshardham temple. After all, the courts below have only punished the suspects based on their own confessions. Therefore, it becomes necessary to see how these confessions were obtained by the police.  I will not discuss the details of the case or the judgment as I have already included them in my previous post on the subject.  I will merely excerpt the retraction statement of one of the accused, Mr. Ajmeri Suleman Adam the accused no. 2, reproduced by the Supreme Court in its judgment:

“I, Ajmeri Suleman Adam, state in writing that five to six officers of Ahmedabad City Crime Branch from Gaekwad haveli came in maruti car at the corner of my mohalla at about 1.30-2.00 in the night and they called me. They asked my name and occupation. I told the officers that I am rickshaw driver. They told me to sit in our maruti car. We have to take you for enquiry. They told me that the rickshaw which them that the rickshaw that I drive is not be theft. He has owner. Then the officer abused me, beat me and seated me in the car by coercion. I was taken into the crime branch office at night they tied a strip on eyes and placed me at such a place that I do not know. Then I could not sleep for whole night. I was thinking that I have not done any wrong. Then why I was brought here, then on 10-8-2003, on next day at 1.00 noon a constable came and told me to come with him as higher officer call you. At that time a strip tied on my eyes. The constable caught me and put in an office and opened the strip from my eyes. I saw four officer sitting there. Shri Vanzara, DCP Shri Singhal, ACP Shri Vanar PI and Shri patel PI, I came to know afterwards that these officers are from crime branch. Shri DCP Vanzara asked me whether I know after works that these officers are from crime branch. Shri DCP Vanzara asked me whether I know why I was brought here. I replied that you other officers told me that the rickshaw that I drive is by thefts and I am to be asked about it. He told me that I was not brought here for that crime but for other crime. I told that I not have made such crime that I should be brought here. Then Singhal Sahib abused me and told that should agree to what they say. I should agree that I am the criminal of Akshardham carnage. I told them that I have never gone to Akshardgam nor have I seen it. Kindly do not involve me. He immediately called five or six persons and told me to have handcuffs and fetters. Vanar Saheb beat me on soles. Shri Singhal Saheb told me that I agree with the crime of Askhardham, they shall not beat me and have some benefits. Then they beat me in such a way that I became unconscious and fell down. ..
...When I became conscious I was near Vanar Saheb office. I suffered much difficulty. I was weeping. It was night. At that time one constable came and told me that superior sahib was calling. I had no strength to walk or stand. I was caught and taken to Vanzara Saheb office. All four officers were present there. They told me to agree the crime, otherwise I shall be encountered. But I did not believe. Then they brutally beat me. There was bleeding in back portion....They gave me currents. Then I told them, sir, have mercy on me. I am not culprit. Pardon me. Please don’t make me criminal wrongly. I do not know anything in this regard. They threatened me to harass me and my family members. Even though I have not committed any crime, they wanted to agree Akshardham crime.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the State of Gujarat)”

A-2 further stated:

“One day Singhal Saheb called me to office and asked me to do as we say. I know that you are a good congress worker. The relief materials received from congress at the time of godhra episode were distributed among Muslims and poor persons as said by congress leader you contested as an independent candidate in 1998. We know that congress candidate was defeated and BJP candidate won the election. You made a case against BJP in the High Court. The case was extended to Supreme Court but you could not do anything. What shall you able to do now....
...I was harshly beaten from 9-8-2003 to 28-8-2003 without my fault and behaved rudely.
...Singhal Saheb came to my office at night (29-8-2003) and told me, “We have declared you as criminal. We shall take you to court and present before Judge. You should not speak anything against us, otherwise we shall get you down on the way and encounter you. You shall not come alive. Then I requested Vanzara Saheb, Singhal Saheb, Vanar Saheb and Patel Saheb that you have beaten the truth and placed lying in a higher position......They told me to sign where they say...
...They threatened me and presented to the court . Hon.Court gave remand. During court, I was in crime branch. Shri Vanzara Saheb, Singhal Saheb, Vanar Saheb and Patel Saheb behaved with me as if I am an animal. During that time, I was taken to VS Hospital. They told me one thing that I should not narrate my difficulties to the Doctor, otherwise I shall be harassed like anything. I should say to the doctor I am healthy and I shall get treatment from the private doctor who comes in crime branch for any trouble. ...
....Singhal Saheb seated me in his office on 4-9-03 at night and told me to write in my handwritings as he says, otherwise I shall be finished. I went to writing as he stated. I have not written this willingly but as per wish of Singhal Saheb. If I would not have written so, I would have been encountered on that very day or night. I was frightened and I wrote on account of fear. I was taken to Ahmedabad airport on 5-9-03. Vanzara Saheb, Patel Saheb, AA Chauhan Saheb and other three PSI s were with me....IG Shrinagar called me on 7-9-03. At that time three officers of Shrinagar were present. He told me to tell the truth. Then I told on oath of kuran-sharif true facts. I was arrested on 9-8-03. Till them I am beaten. I do not know anything about Akshardham. They have threatened my family members and threatened me to encounter. I have been forced to agree to the crime. I told officers of Shrinagar to help me, otherwise these officers shall kill me. Then they told me that we also know that you are innocent...
.....I reached to Ahmedabad on 9-9-03....Then I was taken to POTA Court. Prior to it Singhal and Vanar Saheb told me that I was to be taken to the Court. “If you complain, you shall not be kept alive. You might not be knowing what we can do. We can take out prisoner from the Central Jail and encounter him, while you are with us. Latif was in jail. We brought him out and killed. What can you do against us.” I was not allowed to speak anything in the Court...I was taken on 23-9-2003 with strips on my eyes. I was told that Doctor had come for my treatment. ..I was given two injections on my right hand....On the next day I told them that I have many difficulties on account of your injections. Then Vanar Saheb and Patel Saheb told me that our work is over and I am not required now. On 25-9-03, Vanar Saheb, Singhal Saheb and other officers seated me in a jeep and took me to old high court. Singhal Saheb and vanar Saheb informed me that here in big judge. You should sign where he says, otherwise you know what we can do. Here court is ours, Govt. is ours, polics is ours and judge sahib is also ours. I was taken to judge sahib room. There were some written papers. I do not know what was written in it. Without allowing me to read anything judge sahib and crime branch officers took my signatures thereon.....Singhal,Vanar and other officers at in judge hamber. They took snacks and tea. After one hour all officers came out smiling saying our work is over. We shall present him in Pota court and send them to Central Jail....
...I request you that since last two months I remained in crime branch as helpless and humble....
...If you want the truth in this case to be revealed, hand over the case to CBI officers. It is my humble request to you to hand over the investigation to the CBI and truth shall be revealed to you. Sir, when I was sent to central jail I told the jail authorities that I required treatment...
...I am hopeful that you shall prevent me and my family from ruin and do justice. I am hopeful that you shall do justice to me and my family after considering my request.”
(emphasis laid by this Court)
(translation extracted from the Additional
documents submitted on behalf of the State of
Gujarat)” (Para 115)

The above narration, by a person who had to undergo over ten years of imprisonment and the mental torture from a death penalty hanging over his head, must open the eyes of every concerned citizen. We can easily ignore this by stating that it is the fate of someone else from somewhere else and it does not concern us. Probably, until the year 2003, Ajmeri Suleman Adam also must have shared the same views. Like what befall upon Ajmeri Suleman Adam on a fine day in 2003, this can happen to any one of us, irrespective of who we are. Obtaining a confession under torture or threat of an encounter must be an easy task for any police team, who are not concerned about the repercussions or principles of law. A police officer who wants to seek the glory of solving a high profile case, or a Home Minister or Chief Minister who wants to project a non-nonsense image in matters of internal security might find one of us convenient, to be picked up and charged with a crime of terror.  

                The Akshardham case is an eye opener in many sense. Our police in its current form is not credible enough to be entrusted with draconian powers. This case shows how the police and state can terrorize innocent citizens, for their narrow and selfish objectives.  Let me again quote the Supreme Court here:
“We intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us” (Para 131).

If you are one of those who advocate POTA like laws (I still find many of them), consider yourself, for a second, in the shoes of Ajmeri Suleman Adam. Would you not prefer to be a victim of cross-border terrorism, rather than of state sponsored terror in the name of counter-terrorism? At least, in the former case, you will not be branded and condemned as a traitor of your own nation and people!

1. The errors appearing the excerpts are part of the original translation. All emphasis in the excerpt are by the Supreme Court.

Wednesday, May 21, 2014

Supreme Court Verdict in Akshardham Terror Case- Some Thoughts

                When I read the shocking headline “They asked me to choose: Godhra, Pandya or Akshardham” attributed to Mr. Muhammad Saleem, one of the six people to be acquitted by the Supreme Court in the Akshardham terror attack case, in The Indian Express, it made me curious to study the judgment, in its entirety. The case involved the appeal against concurrent judgments of the POTA Court and Gujarat High Court, awarding, inter alia, death penalty to three persons and life imprisonment / rigorous imprisonment to the remaining three. All six accused persons were acquitted, and that included one accused who did not appeal as he has already completed the sentence while all others have spent more than ten years in jail.

                This 258 page judgment issued on 16th May 2014 did not get much attention from the national media. This lack of Media attention was not surprising, given the fact that the general election results were announced on the same day and the Media was euphoric about the huge mandate received by Sri Narendra Modi.  The date of the judgment, however, was significant as the underlying case was directly related to the same Narendra Modi, in more ways than one.  Modi was the Home Minister and Chief Minister of Gujarat State when the terror attack that killed 33 persons and injured another 86 persons, took place. Modi government received accolades for solving the terror cases, including this one, with determination. No doubt, such ‘decisive and uncompromising actions against terrorism’ was among the many factors attributed to Modi’s subsequent rise within the Party, leading to the massive mandate for his elevation to the post of Prime Minister of this country.  It is a mere coincidence that the judgment came to be pronounced on the same day!

                As I stated, Modi was the Home Minister of the state when the terror attack took place on Akshardham temple, on 24. 09.2002. Both the attackers were eliminated by soldiers of the NSG, by early morning on 25.09.2002. There were conflicting versions from the prosecution itself (as noted by SC) as to the identity of the attackers. The Gujarat police began investigations, immediately, to unearth any wider conspiracy behind the attack. Let me quote the judgment itself, to show how the investigation progressed:
“The investigation process post Akshardham attack happened as under:
• The incidence of Akshardham happened in the intervening nights between 24.09.2002 and 25.09.2002. An FIR was registered by PW-126 on 25.09.2002.
• According to the instruction of Superintendent of Police, the investigation of the complaint was handed over to Police Inspector Shri V.R. Tolia (PW-113).
• The investigation was then handed over to the Anti Terrorist Squad on 03.10.2002.
• The investigation was thereafter handed over to the Crime Branch which was assigned to PW-126 on 28.08.2003 at 6:30 p.m.
• The statement of PW-50 was taken at 8 p.m, on the same night of 28.08.2003, after receiving verbal instruction from higher officer-D.G. Vanzara in the morning.
• A-1 to A-5 were arrested on 29.08.2003.
 • POTA was invoked on 30.08.2003.
• The I.G.P. Kashmir sends a fax message to I.G.P. operations ATS Gujarat state on 31.08.2003 regarding A-6 being in the custody of Kashmir Police and that he has stated that he was involved in the Akshardham attack.
• A-6 was brought to Ahmedabad on 12.09.2003 and was arrested at 9:30 p.m.

A careful observation of the above said dates would show that the ATS was shooting in the dark for about a year without any result. No trace of the people associated with this heinous attack on the Akshardham temple could be found by the police. Then on the morning of 28.03.2003, the case is transferred to Crime Branch, Ahmedabad. This was followed by D.G. Vanzara giving instructions to the then-ACP G.S. Singhal (PW-126) about one Ashfaq Bhavnagri (PW-50). PW-126 was thereafter made in charge of the case on the same evening at 6:30 p.m. and the statement of PW-50 was recorded at 8 p.m., i.e within one and a half hours” (Para 131).
I am sure readers must be remembering the names like Vanzara and Singhal appearing in the above excerpts. They are the same infamous police officers who were known for conducting fake encounters and are currently under investigation/trial, in different cases. Look at the ‘inefficiency’ of Gujarat police and ATS who failed to get any information about the conspiracy for almost a year and then look at the efficiency of the Crime Branch unit that solved the case and arrested all the accused, in less than 48 hours of being entrusted with it! 

Readers may also have noted that the infamous and now repealed POTA was invoked in the investigation of this case. Another coincidence- the sanction to invoke POTA in the case was accorded by the then Home Minster Mr. Narendra Modi. Let us see what the apex court had to say about the process followed by our new Prime Minister.
“The prosecution had failed to prove that the sanction was granted by the government either on the basis of an informed decision or on the basis of an independent analysis of fact on consultation with the Investigating Officer. This would go to show clear non-application of mind by the Home Minister in granting sanction. Therefore, the sanction is void on the ground of non- application of mind and is not a legal and valid sanction under Section 50 of POTA” (para 77. Emphasis supplied be me).
At any other point of time, our civil society and Media would have been very much concerned about a finding by the Apex Court that our new Prime Minister failed to apply his mind while dealing with a matter involving, both national security and life of the accused. But then, the times are changing and the Sensex and TRP are on the rise!

                I will not go into details of the evidences adduced by both sides. Supreme Court found each and every story put forth, and each and every evidence put up by the prosecution, untrustworthy. Death penalty was awarded on the basis of retracted and invalid confessions obtained under duress and corroborated only by illegal and vague confessions of other accused person (Court found that those corroborating statements were also obtained illegally and under duress). The choice given to all the involved persons were, apparently, like what is stated by Muhammad Saleem- to choose between “Godhra, Pandya or Akshardham,” or between a terror case and immediate encounter killing. Suffice to say, the Supreme Court found, “the story of the prosecution crumbles down at every juncture” (Para 120). Supreme Court demolished the entire case in which three persons were granted death penalty, in the following words:
“Here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us” (Para 131. Emphasis by me).

Citizens have to be concerned when the High Courts are willing to confirm death penalties and justify insufficiency of admissible evidence by merely quoting, “Truth is stranger than fiction”. Thankfully, in this case the Apex Court countered the perverted use of the epithet by stating that the “renowned epithet by the author Mark Twain comes with a caveat that says, “Truth is stranger than fiction. Fiction must make sense” (Para 103).  However, that did not undo the damage for those citizens who had to stay for a decade in jail, with the stigma of terrorists!

What made the entire system to take such a perverted view about justice and national security? Who benefitted from such a gross violation of law? We saw how the involved police officers became blue eyed boys of the state and, subsequently, indulged in fake encounter killings with impunity (as charged). We also saw the Chief Minister becoming stronger and stronger, based on a propaganda about his government’s decisive actions against terrorism. We also saw the manner in which the person in whom the nation has now entrusted its future was taking serious actions without, as noted by the Court, any application of the mind. More sinister will be the conclusion, if we consider that the approval was indeed granted with sufficient application of mind. That will make the immediate future of this country’s justice system and human rights, at stake!

          The apex court further stated:
“Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” (Para 136. Emphasis by me).

These words are really alarming. These words from the highest judiciary of the land must cause serious thinking among concerned citizens and Media. More so, since we have now elevated the system from the Gujarat state, to the national level. Will we again hear the call for “stronger laws” like POTA to counter terrorism? Let me conclude by reminding, “POTA was repealed for the gross violation of human rights it caused to the accused due to abuse of power by the Police” (Para 73) and hope the sanctity of our justice system will not be made subservient to rulers’ image building exercise. 

PS: IN case you are interested in reading further, here is the link to the Supreme Court judgement in CRIMINAL APPEAL NOS. 2295-2296 OF 2010
Adambhai Sulemanbhai Ajmeri & Ors. …Appellants Vs State of Gujarat ...Respondent  WITH

Wednesday, May 7, 2014

Supreme Court Judgment in Mullaperiyar Case-Salient Points

          Finally, the much awaited judgment on Mullaperiyar Dam is delivered by the Supreme Court. After reading the 158 page judgment the first thought that crosses one’s mind is why it took so many years to arrive at it! Except for the findings of the Empowered Committee, which was not even subjected to cross examination, the whole case is decided on legal and technical grounds.  The judgment mainly deals with the questions of validity of 1886 lease agreement, the nature of 1886 lease, constitutionality of 2006 Amendment of the Kerala Irrigation and Water Conservation Act, 2003, safety of the dam, and appointment of a supervisory committee.  In a nutshell, Kerala has lost the case and the Mullaperiyar, in its entirety, with all its contentions having been clinically rejected by the Court. The only silver line I could see is the assertion that "it is always open to any of the parties to approach the court and apply for re-assessing the safety" 
      Some of the salient points from the judgment are excerpted below for ready and easy reference.  The inclusion is based solely on my understanding and, therefore, if you propose to use the information in any manner, I request you to read the full text of the judgment. Purpose of this post is to let the readers have a clearer picture about the judgment and issues dealt with in it, instead of depending on the statements misleading statements of politicians and other with vested interests.Throughout this post, notes and emphasis are supplied by me.

State of Tamil Nadu Vs. State of Kerala and another (OS No. 3 of 2006)

On the question whether State of TN can claim under 1886 Lease Deed:
41. ……By virtue of Sec 177 of 1935 Act, the Government of the Province of Madras is deemed to be substituted as lessee in the 1886 Lease Agreement.

On the question of validity of 1886 Lease Deed:
          47. It is true that Section 7(1)(b) of Act of 1947 Act uses the expression “all treaties and agreements” but, in our opinion, the word “all” is not intended to cover the agreements which are not political in nature. This is clear from the purpose of Section 7 as it deals with lapsing of suzerainty of His Majesty over the Indian States and the consequence of lapsing of suzerainty. Obviously, the provision was not intended to cover the agreements and treaties other than political. We, accordingly, hold that Section 7(1)(b) concerns only with political treaties and agreements.
          49. There is, thus, no merit in the contention advanced on behalf of Kerala that 1886 Lease Agreement lapsed under the main provision of Section 7(1)(b) of 1947 Act.

On the question of effect of Travancore Maharaja’s denouncement of 1886 Lease Deed:
          50. …..The expression “denounced by the Ruler of the Indian State” in the proviso appended to Section 7, in our opinion, refers to unambiguous, unequivocal and express denouncement. Kerala has not produced any material or document to show that there was express denouncement of that nature by the Ruler of Travancore insofar as 1886 Lease Agreement is concerned. We do not think that the bulletin issued on 18.07.1947 clearly or finally denounced the 1886 Lease Agreement.
51. Moreover, to be a valid and effective denouncement of the agreement between the Ruler and His Majesty such denouncement must be made after 1947 Act came into effect. Admittedly, there is no denouncement of 1886 Lease Agreement by the Travancore Ruler after 15.08.1947.

On the nature of 1886 Agreement
          65. ….. As we have already held – and that is what has been held in the 2006 judgment as well – that 1886 Lease Agreement is an ordinary agreement and that it is not political in nature, the embargo of Article 363 and the proviso to Article 131 have no application.

On the question of Constitutionality of 2006 Amendment (which was the cause of litigation)
          145.  …….In our opinion, by 2006 (Amendment) Act, the Kerala legislature has overturned a final judgment in the interest of its own executive Government. The impugned law amounts to reversal of the judgment of this Court which determines directly the question of safety of Mullaperiyar dam for raising water level to 142 ft. and whereunder Tamil Nadu’s legal right has been determined.
          146. …… In our view, a legislation violating the separation of powers principle cannot be saved by carving out an exception that the legislature has regulated a public right. We think that the act of legislature designed to achieve a legitimate regulatory measure does not grant constitutional immunity to such law enacted in violation of separation of powers principle or in other words, rule of law. Once a judicial decision on ascertainment of a particular fact achieves finality, we are afraid the legislature cannot reopen such final judgment directly or indirectly. In such cases, the courts, if brought before them, may reopen such cases in exercise of their own discretion.
          151. ……The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded.
          152. …..The rule of law which is basic feature of our Constitution forbids the Union and the States from deciding, by law, a dispute between two States or between the Union and one or more States.

On the question of Res Judicata
          164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.
          165. ……In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
170. The principles of res judicata are clearly attracted in the present case. The claim of Kerala in the earlier proceeding that water level cannot be raised from its present level of 136 ft. was expressly not accepted and the obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft.

On the question of Safety of the Dam
          149. It is true that safety of dam is an aspect which can change from time to time in different circumstances but then the circumstances have to be shown based on which it becomes necessary to make departure from the earlier finding. It is always open to any of the parties to approach the court and apply for re-assessing the safety aspect but absent change in circumstances, factual determination in the earlier proceedings even on the questions such as safety of dam binds the parties. If the circumstances have changed which necessitates a re-look on the aspect of safety, the Court itself may exercise its discretion to reopen such case but legislative abrogation of judgment for even the very best of reasons and genuine concern for public safety does not clothe the legislature to rescind the judgment of the court by a legislation.
198. Moreover, this Court appointed EC (Empowered Committee) to assure itself about the safety of the Mullaperiyar dam. The EC, we must say, has completed its task admirably by thoroughly going into each and every aspect of the safety of Mullaperiyar dam. We do not find any merit in the objections of Kerala challenging the findings and conclusions of the EC on hydrologic safety, structural safety and seismic safety of the dam. The findings of EC with elaborate analysis of reports of investigations, tests and studies lead to one and only one conclusion that there is no change in the circumstances necessitating departure from the earlier finding on the safety of Mullaperiyar dam given by this Court in 2006 judgment. As a matter of fact, there is no change in circumstances at all much less any drastic change in circumstances or emergent situation justifying the reopening of safety aspect of Mullaperiyar dam which has been determined by this Court in the earlier judgment.

On the Question whether Periyar is an Interstate River
          206. It is true that in the earlier proceedings there is no express and categorical admission of Kerala that river Periyar is an inter-State river, but the very plea of lack of jurisdiction of this court for considering the applicability of Article 262, as noted above, would not have been raised by Kerala if river Periyar was an intra-State river. Moreover, the entire area drained by the river and its tributaries is called the river basin. It is well-understood in the water laws that the basin of any river includes the river valley. The topographical map of Periyar river-basin shows that part of Periyar basin (about 114 sq. km.) is in Tamil Nadu. This is established from Water Atlas of Kerala published by Centre for Water Resources Development and Management, Kazhikode, Kerala. Though the Periyar basin area that falls in Tamil Nadu is very small but, in our view, that does not make any difference insofar as the status of Periyar river as inter-State river is concerned. The fact of the matter is that 114 sq. km. of Periyar basin area falls in Tamil Nadu…..
209. It is true that averment of Tamil Nadu in the plaint that the two States – Kerala and Tamil Nadu – are riparian States is not right in its entirety because Tamil Nadu is not a riparian State but the status of Periyar river as inter-State river, on the basis of what we have observed above, cannot be overlooked. It is not open to Kerala to take a totally inconsistent plea and begin fresh controversy about the status of Periyar river on the ground that the earlier plea was founded on some erroneous premise. In our view, Kerala cannot be permitted to contend that Periyar river is not an inter-State river.

On the Question of Constructing a New Dam
          212. Any amicable resolution of the present dispute between the two States would have been really good for the people of these States but this has not been possible as the two States have sharp conflict over the subject matter and their stance is rigid, inflexible and hard. The offer made by Kerala for construction of new dam has been outrightly rejected by Tamil Nadu. It is important to bear in mind that Mullaperiyar dam has been consistently found to be safe, first, by the Expert Committee, and, then, by this Court in 2006 judgment. The hydrological, structural and seismic safety of the Mullaperiyar dam has been confirmed by the EC as well.

On alternative solutions
          215. EC has itself noted that the second alternative (note: referring to a new tunnel at EL 50 ft.) is dependent on agreement between the two States but to us there appears to be no possibility of mutual agreement on this aspect as well. The alternatives suggested by EC are worth exploring by the two States but having regard to the unbending stance adopted by them, this does not seem to be possible. We, however, grant liberty to the parties to apply to the Court if they are able to arrive at some amicable solution on either of the two alternatives (note: widening of existing tunnel and constructing new tunnel) suggested by the EC.

On three Member Supervisory Committee
          222. However, to allay the apprehensions of Kerala- though none exists - about the safety of the Mullaperiyar dam on restoration of the FRL to 142 ft., a 3-Member Supervisory Committee is constituted. The Committee shall have one representative from the Central Water Commission and one representative each from the two States – Tamil Nadu and Kerala. The representative of the Central Water Commission shall be the Chairman of the Committee. The Committee will select the place for its office, which shall be provided by Kerala. Tamil Nadu shall bear the entire expenditure of the Committee (notes. 1. Look at the use of words “though none exists!”  2. Kerala has to now give more space for this Committee, as well).
          223. The powers and functions of the Supervisory Committee shall be as follows:
(i) The Committee shall supervise the restoration of FRL in the Mullaperiyar dam to the elevation of 142 ft.
(ii) The Committee shall inspect the dam periodically, more particularly, immediately before the monsoon and during the monsoon and keep close watch on its safety and recommend measures which are necessary. Such measures shall be carried out by Tamil Nadu.
(iii) The Committee shall be free to take appropriate steps and issue necessary directions to the two States - Tamil Nadu and Kerala – or any of them if so required for the safety of the Mullaperiyar dam in an emergent situation. Such directions shall be obeyed by all concerned.
 (iv) The Committee shall permit Tamil Nadu 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.

Final Findings of the Court on framed issues
74  (i) The suit filed by the State of Tamil Nadu is maintainable under Article 131 of the Constitution.

74 (ii) The suit based on a legal right claimed under the lease deed executed between the Government of the Maharaja of Travancore and the Secretary of State for India in Council on 29.10.1886 is not barred by the proviso to Article 131 of the Constitution.

74 (iii) The State of Kerala (first defendant) is estopped from raising the plea that the lease deed dated 29.10.1886 has lapsed, in view of the supplemental agreements dated 28.05.1970.

74 (iv) The lease deed executed between the Government of the Maharaja of Travancore and Secretary of State for India in Council on 29.10.1886 is valid and binding on the first defendant and it is enforceable by plaintiff against the first defendant.

199 (i) Kerala Irrigation and Water Conservation (Amendment) Act, 2006 is unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam.

199 (ii)  The rights of Tamil Nadu, crystallized in the judgment dated 27.2.2006 passed by this Court in W.P. (C) No.386/2001 cannot be nullified by a legislation made by the Kerala State legislature.

199 (iii.) The earlier judgment of this Court given on 27.2.2006 operates as res judicata on the issue of the safety of Mullaperiyar dam for raising water level to 142 ft. and ultimately to 152 ft. after completion of further strengthening measures on the Mullaperiyar dam.

199 (iv.) The plea raised by Kerala relating to the lease deed dated 29.10.1886 and structural safety of Mullaperiyar dam have been finally decided by the judgment of this Court dated 27.2.2006 and Kerala is estopped from raising or re-agitating these issues in the present suit.

199 (v.) Kerala cannot obstruct Tamil Nadu from increasing the water level of Mullaperiyar dam to 142 ft. and from carrying out repair works as per judgment dated 27.2.2006.

210. ….it is held that Kerala cannot be permitted to contend that river Periyar is an intra-State river.

213. … For the construction of new dam, there has to be agreement of both the parties. The offer made by Kerala cannot be thrusted upon Tamil Nadu.

221. …..State of Kerala is restrained by a decree of permanent injunction from applying and enforcing the impugned legislation or in any manner interfering with or obstructing the State of Tamil Nadu from increasing the water level to 142 ft. and from carrying out the repair works as per the judgment of this Court dated 27.2.2006…