Mullaperiyar Dam – Press Release: Supreme Court’s 2014 Judgment and the Doctrine of Res Judicata

The Supreme Court in the year 2014, in State of Tamil Nadu v. State of Kerala, held that the judgment of the 3-judge bench of the SC in the year 2006, that the dam is safe and that the water level can be raised to even 152 ft after carrying out certain safety work, is binding on the state of Kerala as “res judicata”. The court also held that the Kerala legislature has no power to undo a judicial decision. The court further held that the plea of the Government of Kerala, that for the safety of the people of Kerala, the maximum water level ought to be kept at 136 ft, is untenable, as is its plea for the construction of a new dam. As regards the construction of a new tunnel at a lower level and the storing of water in check dams in Tamil Nadu, the court held that it is a matter which the governments of Tamil Nadu and Kerala are free to discuss and resolve.

The judgment of the Supreme Court is contrary to the elementary principles of law, for the doctrine of res judicata applies only where the cause of action is one and the same. The safety of a dam is a varying cause of action, the dam not being a static entity, and therefore not an issue where the doctrine of res judicata can be applied.

There is no estoppel against law is a fundamental principle. The legislature usurping the domain of the judiciary is wholly untenable.

In short, the 5-judge constitution bench of the Supreme Court in 2014 stands as a stumbling block in the resolution of the Mullaperiyar crisis. We felt it only appropriate to bring this issue to the notice of the Supreme Court and seek a correction at the hands of the court itself, being affected parties and as lawyers.

The Honorable CJI has been kind enough to agree to list the matter on a near date.