Kerala flood: SC orders to maintain water level at 139 ft at Mullaperiyar dam

As a blame-game erupted between Tamil Nadu and Kerala over the devastating floods, the Supreme Court today directed the panel on the Mullaperiyar Dam to ensure that the water level at the reservoir is maintained at 139.99 feet till August 31.

The Mullaperiyar Dam, built in 1895 on Periyar River in Idukki District of Kerala, came under the spotlight with the Kerala government accusing Tamil Nadu, which maintains the reservoir, of sudden release of water leading to unprecedented deluge in the state.

Kerala’s claim was today rebuffed by Tamil Nadu Chief Minister K Palaniswami, who said the neighbouring state had suffered the deluge due to the discharge of excess water from 80 reservoirs spurred by heavy rains there.

The Tamil Nadu government also filed an affidavit in the apex court today charging Kerala with an “obstructionist attitude and non-cooperation” and alleging that it was helping illegal encroachments.

However, the top court steered clear of the dispute between Tamil Nadu and Kerala over the maximum permissible limit of water level of 142 ft in the dam as fixed by it in its 2014 verdict and said that currently, it was concerned with disaster management and maintaining the water level at 139 ft to ensure that the flood situation does not worsen.

“Needless to say, the present writ petition has nothing to do with any kind of dispute between the states of Tamil Nadu and Kerala, but it relates to saving of human lives in the obtaining situation of disaster,” a bench headed by Chief Justice Dipak Misra said.

The bench, also comprising Justices A M Khanwilkar and D Y Chandrachud, took note of the submissions of Additional Solicitor General P S Narasimha, representing the Centre, that the sub-committee on the dam met on August 23 and directed “maintaining the water level at 2 to 3 ft below the permitted level (of 142 ft)”.

The law officer also said the Chairman of the panel has directed that the “current status of reservoir and water level is at 139.99 ft at Mullaperiyar dam, which shall be maintained till August 31”.

“At this juncture, we may direct that the Committee which has met yesterday, shall see to it that as far as practicable water level be maintained at the dam and both the states … shall cooperate with the Committee,” the bench ordered.

Senior advocate Shekhar Naphade, appearing for Tamil Nadu, alleged that the plea seeking to lower the water level at the dam could be part of a “sinister design” to circumvent the apex court’s decision fixing the permissible limit at 142 ft.

The bench said it would not get into the maximum limit as fixed by it in 2014 but rather deal with the aspect of disaster management.

It then fixed for hearing on September 6 the plea filed by Kerala resident Russel Joy seeking a direction to Tamil Nadu to manage the water level in the dam as the floods in Kerala have created a havoc.

It asked the Tamil Nadu and Karnataka to file their responses to the affidavit filed by Kerala in the matter.

Lawyer G Prakash, the standing counsel for Kerala, said the Supreme Court in 2014 had fixed at 142 ft the maximum permissible water level in the dam. 

However, the Kerala government had then set up the “Dam Safety Authority” and fixed the maximum limit at 136 ft, the apex court had set aside the decision of the state government, the lawyer said. 

The 18th century dam’s full reservoir level stands at 152 ft and the limit of 142 ft has been fixed keeping in view its safety.

In 2007, an experts panel had submitted a report to the Kerala government saying there were chances of the dam breaking if the water level was raised beyond 136 feet.

A 2009 report by IIT Roorkee had also stated that the dam “was likely to face damage if an earthquake of the magnitude of 6.5 on the Richter scale struck its vicinity when the water level is at 136 feet”. 

In 2012, a 5-member Supreme Court-empowered Committee headed by former Chief Justice of India A S Anand on the Mullaperiyar Dam had submitted its report to the top court, focussing on all aspects of the 123-year-old dam and its safety. 

The Kerala government had yesterday told the apex court that the sudden release of water from the Mullaperiyar Dam by the Tamil Nadu government was one of the reasons for the devastating deluge in the state.

It had said that out of a total population of about 3.48 crore, more than 54 lakh or one sixth of the population of Kerala, had been directly affected by the floods.

The top court had earlier ordered the disaster management panel of the Mullaperiyar Dam to urgently decide on lowering the water level.

NOTA cannot be permitted in Rajya Sabha polls: SC

 The Supreme Court today quashed an Election Commission notification introducing the ‘None of the Above’ (NOTA) option in the Rajya Sabha elections, saying it would encourage the “Satan” of defection and graft.

A bench headed by Chief Justice Dipak Misra said the NOTA option was meant only for direct elections and not polls held by the system of proportional representation by means of a single transferable vote.

“When one analyses the exercise of choice of NOTA in the voting process of the Council of States, where open ballot is permissible and secrecy of voting has no room, and further where the discipline of the political party/parties matters, it is clear that such choice will have a negative impact.

“An elector, though a single voter, has a quantified value of his vote and the surplus votes are transferable. There is existence of a formula for determining the value of the vote. The concept of vote being transferable has a different connotation. It further needs to be stated that a candidate, after being elected, becomes a representative of the State and does not represent a particular constituency,” the bench, which also comprised justices A M Khanwilkar and D Y Chandrachud, said.

The apex court said if NOTA was allowed in the election of the members to the Council of States, the aspect of defection would “indirectly usher in with immense vigour”. 

“We may immediately add that the option of NOTA may serve as an elixir in direct elections, but in respect of the election to the Council of States, which is a different one as discussed above, it would not only undermine the purity of democracy but also serve the Satan of defection and corruption,” the bench said. 

The judgement came on a plea of Shailesh Manubhai Parmar, who was the Congress chief whip in the Gujarat assembly during the last Rajya Sabha polls, in which the party had fielded sitting MP Ahmed Patel.

Parmar had challenged the poll panel’s notification allowing the NOTA option in ballot papers. The Gujarat Congress leader had alleged that if the NOTA provision was allowed in the Rajya Sabha polls, it would encourage “horse-trading and corruption”.

The bench today said the provision for introduction of NOTA, as conceived by the Election Commission, was absolutely erroneous. 

“We are disposed to think that the decision could not have also said so, having regard to the constitutional provisions contained in Article 80 and the stipulations provided under the Tenth Schedule to the Constitution. 

“The introduction of NOTA in such an election will not only run counter to the discipline that is expected from an elector under the 10th Schedule to the Constitution but also be counterproductive to the basic grammar of the law of disqualification of a member on the ground of defection,” it said. 

The top court said that the introduction of NOTA to the election process for electing members of the Council of States will be “an anathema to the democracy” which is a basic feature of the Constitution.

It held that NOTA will destroy the concept of value of a vote and representation and encourage defection, opening the doors for corruption. Such a concept completely ignores the role of an elector in an election and fully destroys the democratic value. 

“It has to be remembered that democracy garners its strength from the citizenry trust which is sustained only on the foundational pillars of purity, integrity, probity and rectitude and such stronghold can be maintained only by ensuring that the process of elections remains unsullied and unpolluted, so that the citadel of democracy stands tall as an impregnable bulwark against unscrupulous forces,” it said.

The poll panel had said NOTA was first introduced in 2014 following an apex court verdict a year earlier and the Congress then did not have any objection in subsequent polls as it suited them.

Two circulars were issued by the Election Commission on January 24, 2014 and November 12, 2015, giving the Rajya Sabha members the option to press the NOTA button in the Upper House polls.

SC terms criminalisation of politics as ‘rot’, says may ask EC to deal with it

Dubbing criminalisation of politics as “rot”, the Supreme Court today said it may consider directing the Election Commission to ask political parties to get their members disclose criminal cases against them so that the electors know how many “alleged crooks” are there in such parties. 

The observation by a five-judge constitution bench headed by Chief Justice Dipak Misra came when it was told by the Centre that considering the concept of separation of powers, the issue of disqualification of lawmakers fell under the domain of Parliament.

“Everybody understands that (doctrine of separation of powers among Executive, Legislature and Judiciary). We cannot direct Parliament to make a law. The question is what can we do to contain the rot,” the bench, also comprising justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, said.

While hearing PILs seeking to bar persons facing serious criminal charges from electoral politics, the bench took note of the suggestion of senior advocate Krishnan Venugopal, representing lawyer and BJP leader Ashwini Upadhyay who has filed one of the PILs, that the court may ask the poll panel to direct political parties not to give tickets to or take support from independent candidates facing serious criminal charges.

“Criminalisation of politics is antithesis to democracy,” the bench said, adding, “We can always direct the Election Commission to ask political parties to get members and to be members to declare on affidavit if there is any criminal case pending against them and such affidavits should be made public so that voters know as to how many alleged crooks are there in a political party”.

Referring to the “symbols order” and said if a party gave ticket to a person facing criminal or any other case, then the election symbol of that party would be de-recognised, the court said it was seeking upholding of “democratic ideals” and not “legislating” on the issue.

“Nobody is disqualifying anybody. What we may direct the Election Commission is that the election symbol of a political party be taken away if a person, facing criminal charges, is allowed to contest the election on its ticket,” it said.

The bench also said it has to “completely steer clear” of the aspect of disqualification of a lawmaker as it did not fall under its the domain. 

Senior advocate Dinesh Dwivedi, appearing for petitioner NGO ‘Public Interest Foundation’, exhorted the court to venture into the area of barring a person or a lawmaker from entering into electoral politics after the framing charges against them in criminal cases.

He referred to a report of the Law Commission and said it was an “eye opener” document prepared at the instance of the apex court. 

The report says that persons, having criminal records, have better chances of winning elections and the court should issue directions as the law is silent on the disqualification of such members or candidates, as was done in the case of Visakha when guidelines were laid on the issue sexual harassment at work place.

“The law is not silent, this is the whole point. The law provides for disqualification very clearly after a lawmaker is convicted,” the bench said.

“The law is silent as it provides for disqualification at the stage of conviction only. If a person is charge-sheeted or the court has framed the charges in the case then there was no provision of disqualification. The court can pass the directions in this regard,” Dwivedi argued.

The bench also said the Visakha and the anti-ragging guidelines were issued by the court as they related with violation of fundamental rights but this was not the case here. 

“Your argument can be encapsulated in one sentence that since you cannot issue mandamus (judicial writ issued as a command) to Parliament, then issue the writ to the election commission,” the bench said.

Senior advocate Krishnan Venugopal, who is fighting the case against his father and Attorney General K K Venugopal, suggested that to deal with the issue, either a law may be passed or the court can direct the poll panel to ask political parties not to give tickets to persons with criminal records.

He also suggested that the fixed election symbol of a national or state level recognised political parties may be cancelled if they gave tickets to such candidates.

Venugopal also said that the EC can ask the political parties to insert by-laws in their constitutions that they will not allow persons, who are facing trial in cases where minimum sentence prescribed is five years jail term, to fight elections on their tickets. It would serve the “larger good of the society”, he added.

At the fag end of the hearing, Attorney General K K Venugopal vehemently opposed the submissions of his son Krishnan Venugopal and Dinesh Dwivedi, saying they were trying to achieve a “particular result indirectly” which they cannot achieve “directly”.

“The question is whether it is the matter to be dealt by the legislature or it can be dealt by the judiciary… can the five judges sitting in the constitution bench decide the disqualification,” the top law officer said.

The bench countered him saying it understood the concept of separation of powers and cannot direct Parliament to make a law, but the “question is what can we do to contain the rot”.

The advancing of arguments would resume on August 28.

Alwar Lynching: Supreme Court seeks, Rajasthan Government reply on contempt plea

NEW DELHI: The Supreme Court bench headed by Chief Justice Dipak Misra today, sought explanation from Vasundhara Raje led Rajasthan government over the issue pertaining to Akbar alias Rakbar who was attacked by alleged cow vigilantes in Ramgarh, Alwar, due to suspicion of being a cow smuggler.

A bench of  Chief Justice Dipak Misra, Justices A.M. Khanwilkar and Justice D.Y. Chandrachud asked the Principal Secretary of the state’s Home Department to file an affidavit on a plea seeking contempt of court proceedings against the state government.

The bench asked the Rajasthan government whether any disciplinary action has been taken against the police officers who allegedly took three hours to reach a hospital with a badly injured man accused of smuggling cows.

A dairy farmer from Haryana’s Mewat district, Rakbar was beaten up by seven people in July on suspicion of transporting two cows and their calves. The autopsy report said that he had died of shock and injuries from a “blunt weapon or object.

The bench was hearing a contempt plea filed by Tushar Gandhi and Congress leader Tehseen Poonawala seeking contempt action against the Rajasthan government in the mob lynching case at alwar.

Supreme Court directs Disaster Management sub-committee, for decrease in water level at Mullaperiyar Dam

NEW DELHI: The Supreme Court of India directed Disaster Management sub-committee of Mullaperiyar Dam to consider reducing the water level up to 139 feet from the present 142 feet. A bench of Chief Justice Dipak Misra and Justice Indu Malhotra took a serious note of the grim flood situation in Kerala and asked the sub-committee to hold an urgent meeting tomorrow morning with the Centre’s National Crisis Management Committee (NCMS).

An effort has to be made to bring down the water level of the Mullaperiyar Dam to 139 feet so that the people living downstream should not live in constant fear,” the bench said.

At least 75 people have died since August 8 after incessant rains lashed Kerala and triggered massive floods and landslides.

However, Tamil Nadu government opposed the plea with regard to bringing down the water level in the dam, saying that the inflow of water presently is over 12,000 cusec in contrast to the outflow of 5,000 cusec.

Supreme Court, questioned Government over adultery law

NEW DELHI: The Supreme Court questioned the Centre’s stand defending the adultery law and his submission that the penal provision on adultery was needed to save the sanctity of marriage, saying it does not appeal to common sense that a woman cannot prosecute her husband for adulterous relationship.

A five-judge Constitution Bench headed by Chief Justice Dipak Misra asked how it preserved the “sanctity” when with the extra-marital affair becomes non-punishable if the woman’s husband stands by her. The bench headed by Chief Justice Dipak Misra, which reserved its verdict on a plea challenging Section 497 of the IPC.

Other judges on the bench are Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.

The Chief Justice further said, “We are not questioning the legislature’s competence to make laws, but where is the ‘collective good’ in Section 497 of IPC?

Arguing on behalf of the Centre, Additional Solicitor General Pinky Anand said, “In India, marriage is a sacred institution, so any intrusion into that is something which should attract penal consequences.”

“Where is the sanctity of marriage when the husband can consent?” asked Justice R F Nariman. The bench said the law in question was only “targetting” married women and not the men who can have relationships with unmarried women.

Delhi government rapped for interfering in power tariff

The Delhi High Court Friday pulled up the Delhi government for trying to interefere with the fixing of tariff rates for 2010-11 by the Delhi Electricity Regulatory Commission (DERC).

The division bench of Chief Justice Dipak Misra and Justice Manmohan sharply criticised the government, saying: ‘Delhi government cannot pass any direction, asking DERC to hold its decision on tariff.’

While passing the order, the high court accepted the submission of Attorney General G.E. Vahanvati, who has been helping the court in the matter, that the state government was ‘not empowered to interfere with the DERC’s decision and could only issue guidelines to it for its consideration’.

‘Vahanvati’s submission deserves acceptence. Acordingly, we hold that the communication of the present nature made by the state government is absolutely unjustified, unwarranted and untenable and, accordingly, the same stands quashed,’ the bench said, after seeing a file relating to the appointment of the DERC’s members.

‘On a close scrutiny of the aforesaid directions, it is clear as noon day that there has been an order of prohibition to the commission not to pass the tariff order. The direction is issued keeping in view the public interest. The same is not discernible. It is neither evident nor demonstrable. It was an unwarranted interdiction. It is understandable that the state government could have suggested some kind of a matter relating to policy having nexus with public interest, but unfortunately that is not so,’ said the court.

The court was hearing a public interest litigation (PIL) accusing the government of succumbing to pressure from private power distribution companies (discoms) and ‘prohibiting the release of a new tariff order approved by the DERC’ April 29 last year.

The PIL contended that the DERC told the government that discoms were sitting on a combined cash profit of over Rs.300 crore per month and it was time to reduce the power rates.

‘It is the most sorry state and the Delhi government has to play a pro-active role but the state is lost despite the fact that it has immense powers,’ the bench observed.

The court also expressed its unhappiness over the entire exercise of fixing the power tariff for the capital and rapped the city government and the DERC for it.

The functioning of the DERC, which is a quasi-judicial body, was not satisfactory, the bench said, adding that the state government should not have interfered with the panel’s decision on fixing a new tariff.

Highlighting the lapses, advocate Prashant Bhusan had earlier said: ‘A large number of file notings have been tampered with and it is a serious issue.’

Senior advocate Mukul Rohatgi, appearing for one of the discoms, submitted that the issue of power tariff could be decided at a later stage but the issue of fuel surcharge be decided as it was hurting the power companies.

The court then deferred the matter for further hearing Feb 23.

DJB asked to pay Rs.3.5 lakh to kin of drowned kids


The Delhi High Court Wednesday awarded a compensation of Rs.3.5 lakh each to the families of four children who died last year after falling into a pit dug up by the Delhi Jal Board (DJB).

The division bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna said the DJB failed to fence the area around the pit, which resulted in the tragedy.

The DJB has already paid a compensation of Rs.1 lakh each to the families of the victims.

While hearing a petition seeking a compensation of Rs.12 lakh each for the victims’ families, the court directed the DJB to pay Rs.2.5 lakh each – the remaining amount of the total compensation – within four weeks.

The money would be deposited with the court’s registrar in the form of fixed deposits for three years, the court said.

The court granted liberty to the DJB to recover the money from the contractors who were responsible for not fencing the area around the pit.

The four boys drowned after falling into a seven-foot-deep pit filled with water in Timarpur area of north Delhi in December 2010. They were identified as Vikas, 8, Atul, 7, Ritesh, 9, and Narender, 8. The four were residents of Gopalpur village.

Appearing for the DJB, standing counsel Najmi Waziri informed the court that a police complaint against unknown people was registered in the case.