Precautionary Principle- Mullaperiyar dam
In demanding for a new dam below the existing Mullaperiyar dam Kerala state must opt for a construction of a large new dam of Rs.6000 crores are planned for 2 or 3 smaller dams of lesser cost to impound the floods consequent to the failure of existing decaying dam by taking into consideration the flood moderation capacity of Iddukki reservoir. The Kerala state must argue their case on the basis of not only the precautionary principle but also the law of comparative consequences followed in United States and presented in the following paragraphs.
‘Precautionary Principle’, is the basis of the New Dam offered by the State of Kerala. State of Kerala strongly defending our case for a New Dam before the Hon’ble Supreme Court and also before the Hon’ble Empowered Committee citing this principle, which advocates prevention is better than cure. As there is reasonable apprehensions about the imminent danger and the possibility of a dam failure of archaic Mullaperiyar dam, the State of Kerala should not take any chances with its people’s life, which it is duty bound to protect under the Constitution of this great nation.
The origin of the Precautionary Principle can be traced back to Germany in the 1970s with the Vorsogeprinzip. Translated as the ‘Foresight’ Principle, this broad principle is a philosophical approach to risk prevention by taking protective measures against specific environmental/safety hazards in order to avoid or reduce environmental/safety risks. This approach was subsequently adopted in various International agreements.
Precautionary Principle must be invoked:
· Where the scientific evidence for safety is insufficient, inconclusive or uncertain.
· Where preliminary scientific evaluation suggests that effects on the environment, health or safety may be unacceptable and/or inconsistent with the chosen level of protection; and precautionary principle may be applied without waiting for the reality and seriousness of those risks to become fully apparent.
This principle was laid down in the Rio de Janeiro Declaration on Environment and Development of the United Nations Conference on Environment and Development (1992), in which India is a signatory. The due jurisprudence implied in the Rio instruments are international in impact and it cannot be violated by signatories like India.
Moreover, a number of important international conventions have incorporated this principle, including conventions on Climate Change and Biological Diversity.
· “States....must not wait for proof of harmful effects before taking action” (1984 Bermen Ministerial Declaration of the International Conference on the Protection of the North Sea)
· “The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures” (1992 Framework for Convention of Climate Change, Art 3(3))
Former Judge of Supreme Court Sri. V.R. Krishna Iyer, a great humanist, had invited the attention of the nation through an article in Hindu daily published in last year. In that article he pointed out that “Mullaperiyar is a classic instance where the precautionary principle of action cannot wait for a public calamity to happen. The nation as a whole must raise its voice against a possible natural calamity involving Mullaperiyar.”
He also cited a recent judgement of Supreme Court of India in M.C. Mehta v. Union of India (AIR 2004 SC 4033): “In such matters [involving actions that pose a threat of serious or irreversible damage], many a time the preferable option is not clear. If an activity is allowed to go ahead, there could be irreparable damage to the environment; if it is stopped, there could be irreparable damage to economic interests. In case of doubt, however, protection of environment should take precedence over economic interest. The Precautionary Principle requires anticipatory action to be taken to prevent harm. This harm can be prevented even on a reasonable suspicion. It is not always necessary that there should be direct evidence of harm to the environment.”
Nothing in life is entirely risk free, and indeed science cannot demonstrate freedom from risk, particularly from as yet known risks, because ‘absence of evidence’ is not ‘evidence of absence’! There are situations where engineers may disagree with one another. Some experts may consider the condition of a dam to be marginally safer than what others say it is. But nature has its own way, and experts’ expectations and calculations may go awry. Once there is reasonable apprehensions about the imminent danger and the possibility of a risk, the state should not take any chances.
However sound the CWC’s and Tamil Nadu engineers’ opinion on the structural safety of the Mullaperiyar dam may be, as engineers in IITs and Kerala have expressed grave doubts about a tragic alternative scenario, no chances can be taken. Responsible governments are duty-bound to protect and save the lives of every citizen. In this background, Government of Kerala cannot sit idle without taking appropriate and quick remedies to avoid a possible catastrophe.
I would like to sum up my short speech by citing two examples from the international area wherein the precautionary principle was implemented to ensure the safety of the people.
· Boyds Corner Dam is the first concrete dam built in USA in 1872. In 1980s, after the collapse of Tenton Dam, it was decided to review the condition of that dam. There was divided opinion on the safety of the dam. Some strongly believed that it was safe while others believed that it was unsafe. Despite opposition, the Government of USA decided to construct a new dam and the Boyds Dam was demolished and rebuilt in 1990.
· Decommissioning of Old Victoria dam in Australia is an example of how a century old unsafe dam of almost the same age and built using similar technology as that of Mullaperiyar dam was treated in a developed country. This dam was constructed in 1891 with lime concrete like Mullaperiyar dam in 1895. In 1966, the Dam witnessed lot of seepages, which is also the case in Mullaperiyar dam. Certain strengthening measures were carried out to the Victoria dam, which were found to be inadequate in 1988. Therefore the authorities concerned decided to decommission the dam in April 1990. In its place, a new Victoria dam has already been constructed, which now supplies drinking water to the city of Perth.
Considering all the above international covenants and precautionary actions adopted, Government of Kerala has decided to construct a new dam downstream of the existing Mullaperiyar dam to ensure the safety of its citizens and also for ensuring the continued supply of water to the needy farmers of our neighbouring State of Tamil Nadu. This has been now endorsed by our Legislative Assembly through a unanimous resolution. We have conveyed this assurance several times to Government of Tamil Nadu and Government of India.
I hope Tamil Nadu Government will understand and sensitive to the fear and concerns of the people living downstream of Mullaperiyar dam (who are the legitimate riparian donors of the water to Tamil Nadu’s agricultural prosperity) for a dialogue on exploring the possibility of risk reduction from the old dam and as well as extend their co-operation for a New Dam. Be proactive rather than being obstructive!
In deciding whether a particular project like a thermal plant, an irrigation project is to be established, renovated or decommissioned in a given locality the opinions of experts on the comparative advantages and disadvantages of a proposed action is studied indepth. If what an expert “X” concludes about the advantages and disadvantages of the project and what a second expert “Y” says taken into consideration and they are given different weightage. If what “X” says turnout to be true what will be the magnitude of loss or gain is considered similarly, if what “Y” says turnout to be true what will be the magnitude of loss or gain is also considered. Out of these two expert opinions the choice of selection of a particular project is taken up on the basis of which of these two proposals confer more benefits and least costs to the firm. Thus law of comparative consequences is applied in choosing a particular project that confers maximum benefits to the company and the people. Hence in the case of Mullaperiyar dam the comparative advantages and disadvantages of the existing dam must be compared and in the present case the construction of a new dam with the participation of both the states and the Union Government provides more benefits because it becomes a project that confers sustainable development with the consequential benefits to both the states by presenting a win-win situation.