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Why we need to go beyond 'letter of the law' in inter-state disputes

May 14, 2014 15:15 IST

The history of the Cauvery and Mullaperiyar cases has shown how helpless the constitutional processes and judicial verdicts have been in enforcing the law of the land in inter-state and state-Centre disputes, says N Sathiya Moorthy.

Two Supreme Court verdicts on May 7 left Tamil Nadu with mixed feelings of jubilation and concern. Things could settle down only when the new government at the Centre and/or the Supreme Court revisit the issues and find operable solutions that will be acceptable to all stake-holders.

Of the two Supreme Court verdicts mentioned, one involved the ‘Mullaperiyar dam row’ with neighbouring Kerala. The court reiterated its earlier verdict, allowing Tamil Nadu to raise the water-level to 142 feet first and slowly up to the original 152 feet, from the existing 136 feet, which alone Kerala would accept.

Unlike what’s commonly acknowledged as a positive order in Tamil Nadu since, both by the state government and the otherwise divided polity alike, on the Mullaperiyar dispute, the Supreme Court has once again directed the formation of a tri-lateral committee to oversee the implementation of the same.

This is as much pertinent as the court’s re-confirming the earlier order on Tamil Nadu raising the reservoir’s water-level in the ‘Mullaperiyar dispute’, this, as also the ‘Cauvery water case’ have stagnated at levels where the state’s judicially-acclaimed rights have remained bogged down in one committee after the other.

On the ground, whether in Karnataka or in Kerala, an order perceived as not favourable has faced strong public protests, with political participation and strong and open government support.

This time, the Mullaperiyar order was promptly followed by an all-Kerala bandh the next day. At an all-party meeting, the state government declared its intention to move a review petition in the SC against the order. It may also not cooperate in the formation of the court-ordered trilateral committee by declining to nominate its members.

On earlier occasions, court-ordered committees had studied aspects affecting the larger issues. They were not asked to implement/enforce a court order, which Kerala feels is against its interests and legal position.

‘Jallikattu’ and Diwali cracker-bursting

The second verdict banned the famed ‘jallikattu’ (bull-fight) during the annual harvest festival of Thai Pongal in mid-January.

In doing so, the SC bench has elevated animal rights to ‘constitutional rights’ and indicated that Parliament should enact a law to protest ‘animal rights’.

With this, the court has made a U-turn, starting with the ban first in the 1990s, saying that both bull-fighters and spectators were either killed or injured for lack of preventive and protective measures, which had traditionally be lacking, anyway. Today -- and rightfully so up to a point -- the ban is more over ‘animal rights’ than ‘human rights’.

But Tamil Nadu’s jallikattu has never involved cruelly and continuously hurting, bleeding and killing the animal.

The traditional rural sport always involved brave youth trying to control exclusively-bred speeding bulls, specially fed and brought up for the purpose -- with their bare hands.

Over the past years, the apex court, intervening on behalf of the animals that could not protest, has laid down specific conditions for the organisers and government authorities to enforce, considering that that the sport is a tourist-attraction across many parts of the state.

Citing violations and non-implementation of animal rights and specific court orders, the bench has now banned the sport for good. If local protests against the ban are now not heard and read about outside the state, it owes mainly to the national frenzy on Elections 2014. It is likely to peak again ahead of the Pongal season next January, if no way out had been found until then.

In a way, the current ban on jallikattu has to be read in the context of a decade-and-more old Supreme Court order, regulating cracker-bursting on Diwali day across the country. It affected Tamil Nadu more than any other state, but reeling under justified human rights pressures on the use/abuse of ‘child labour’, the southern Sivakasi-based industry at best grumbled its protest that was not heard outside.

Though the Tamil Nadu government did not move a review petition at the time, and the state’s overzealous Pollution Control Board has done everything since to enforce the court order with a missionary zeal, the fact escaped everyone -- that in the state that manufactures the largest quantity and variety of Diwali crackers in the country.

Politics of popular sentiment

On a near-similar note as the court order now, Tamil Nadu Chief Minister J Jayalalithaa had banned some traditional Hindu practices of worship at local temples in southern Tamil Nadu that had eternal potential to cause harm to the devotees when she was in power earlier in 2001-06. She promptly withdrew the order after party cadres attributed poor electoral showing in 2004 to the new law, among others.

Popular sentiment came into play otherwise too, when the Jayalalithaa government beat a hasty retreat after bringing in a new law, banning religious conversions. The AIADMK found that minority communities had voted against the party for the very same reason also in 2004.

Ahead of the polls and after the law had been enacted, the church in particular took to the streets, and Christian missionary-run educational institutions observed a day of prayer and protest, against the new law.

Striking a balance

The history of the Cauvery and Mullaperiyar cases has shown how helpless the constitutional processes and judicial verdicts have been in enforcing the law of the land when disputes of the kind involved two or more states, and not just a single state government, or the government at the Centre --  or, the Centre and a state government, alone.

Most such cases have often involved the interpretation of the law, or the relative powers of the Centre and the state in the enactment and/or enforcement of a particular piece of legislation, or the judicial interpretation of the same.

In this context, the pending Supreme Court cases on the ‘Kachchativu issue’ and the ‘Sethusamudram project’, both involving the Centre and the Tamil Nadu government and other stake-holders from the state, may hold a key to the future.

It would also mean where each stake-holder, beginning with the governments concerned, should draw the red-line for itself. Whether a good executive decision or not, the court took up the ‘Sethusamudram case’ halfway to the completion of the project, which has a political and historic connotation in Tamil Nadu, purportedly in terms of ushering in development to the backward southern districts.

‘Custom’ as law

Recently in another of the cases involving the Tamil Nadu government’s decision to free the Rajiv Gandhi assassins after the apex court had commuted their death sentence to one of life, a division bench headed by outgoing Chief Justice P Sathasivam, concluded in its wisdom, to refer the matter to a constitution bench.

It is unclear if the constitution bench, directed to be set up within three months, would have to confine its inquiry questions set out by the three-judge bench, or would have the freedom and/or wisdom to add to, or delete from the list.

Simultaneously, the question remains if the courts by themselves could arrogate to them the powers to completely upturn a ‘customary practice’ like jallikattu that has the force of law under the rules and practices of Indian jurisprudence even as it had under other circumstances, has upheld the same in case after case after case.

The ‘marumakka-thayam’ law of matrilineal/matriarchal inheritance in Kerala, and ‘thalaq’, the Islamic Sharia law of divorce, are among the examples that would readily come to mind. 

The Mullaperiyar and the ‘jallikattu’ cases being at the two ends of the legal/judicial spectrum, maybe it is time, the courts, governments and communities across the country should put their heads together, before formal judicial forums, or informal national discourses through the media and otherwise, to find solutions to the kinds of constitutional issues and legal problems that have agitated a sensitive state like Tamil Nadu.

Left unchecked and unaddressed -- or sending out increasing perceptions of the latter in the south Indian state -- could, if only over time, lead to situations that should be stalled in the track, and early on, as they might have the potential to challenge the authority of the Indian state at one level, and/or the integrity of the Indian nation, on the other.

N Sathiya Moorthy is a veteran journalist and political analyst and director of the Observer Research Foundation (Chennai chapter)

N Sathiya Moorthy