Why Plachi­mada?

The Plachi­mada case can set a prece­dent for com­pen­sa­tion claims for pol­lu­tion vic­tims. Is that the only rea­son the Union gov­ern­ment is try­ing to sub­vert the process?

Down to Earth - - CONTENTS - S FAIZI

Since it can set a prece­dent for pol­lu­tion vic­tims, suc­ces­sive gov­ern­ments have de­layed lit­i­ga­tion in the Plachi­mada case

WHEN A piece of leg­is­la­tion—unan­i­mously passed by the Ker­ala Assem­bly and sent to the then Congress gov­ern­ment for pres­i­den­tial as­sent—is held up in the home min­istry for four years, it rep­re­sents a sub­ver­sion of the Con­sti­tu­tional process rais­ing wor­ry­ing ques­tions. Was the holdup on be­half of a re­cal­ci­trant multi­na­tional cor­po­ra­tion, which was once thrown out of the coun­try? Now the bjp regime is work­ing even more vig­or­ously to sub­vert this process. The home min­istry re­cently sent a let­ter to the Ker­ala gov­ern­ment “re­quest­ing” it to with­draw the piece of leg­is­la­tion, an act even the Congress gov­ern­ment had not dared to.

Choked jour­ney

The en­vi­ron­men­tal and so­cial dev­as­ta­tion of the Plachi­mada area in Palakkad dis­trict of Ker­ala had forced the state gov­ern­ment to set up a High Power Com­mit­tee (hpc) in May 2009 com­pris­ing 13 ex­perts. It was chaired by the ad­di­tional chief sec­re­tary, and its nine months of work re­sulted in an ex­haus­tive re­port, sci­en­tif­i­cally es­tab­lish­ing with ro­bust ev­i­dence the dev­as­ta­tion caused by the op­er­a­tion of the plant es­tab­lished by the Coca-Cola com­pany in the area.

The Plachi­mada Coca-Cola Vic­tims Com­pen­sa­tion Claims Tri­bunal Bill was unan­i­mously passed in the Ker­ala Assem­bly on Fe­bru­ary 24,2011,fol­low­ing the sub­mis­sion of the re­port of the hpc, to es­tab­lish a tri­bunal to ad­ju­di­cate claims of com­pen­sa­tion from the multi­na­tional com­pany by the vic­tims of Plachi­mada. On a con­ser­va­tive es­ti­mate, the hpc es­ti­mated the cost of dam­ages at Plachi­mada at a min­i­mum of 216.26 crore.

What has hap­pened to the bill there­after pro­vides a

The en­act­ment of the law will re­main a crit­i­cal con­tri­bu­tion in en­forc­ing a le­gal regime for the sus­tain­able man­age­ment of scarce nat­u­ral re­sources of the coun­try

text­book case of how pow­er­ful multi­na­tional com­pa­nies, with the back­ing of their home gov­ern­ments, sub­vert the statu­tory pro­ce­dures in de­vel­op­ing coun­tries.

Billed to stall

The Ker­ala gover­nor sent the bill for pres­i­den­tial as­sent through the Union home min­istry a month later. Although there was no is­sue of re­pug­nance with any of the Cen­tral laws, it was sent for pres­i­den­tial as­sent to ob­vi­ate any fu­ture ar­gu­ment of re­pug­nance in a court of law. The home min­istry for­warded the bill to var­i­ous min­istries for com­ments, and five min­istries sub­mit­ted their cat­e­gor­i­cal ap­proval for the bill. These are the min­istries of agri­cul­ture, ru­ral de­vel­op­ment, wa­ter re­sources, food pro­cess­ing in­dus­tries and the depart­ment of jus­tice un­der the min­istry of law. Be­yond cat­e­gor­i­cal ap­proval, some min­istries, in fact, sug­gested stronger mea­sures than rec­om­mended in the bill.

Yet, it is shock­ing that the bill was not passed on to the Pres­i­dent by the Congress gov­ern­ment at the Cen­tre.The then home min­is­ter P Chi­dambaram was par­tic­u­larly keen on sub­vert­ing the leg­is­la­tion, and his suc­ces­sor, S K Shinde worked un­der his guid­ance.The home min­istry then ad­vised the state gov­ern­ment—in line with the multi­na­tional’s “le­gal opin­ion”—to ap­proach the Na­tional Green Tri­bunal (ngt). This un­der­lines the fact that the home min­istry of­fi­cials have over­looked the Na­tional Green Tri­bunal Act, 2010. Sec­tion 15.3 of the Act re­quires the pe­ti­tions for com­pen­sa­tion to be filed within a pe­riod of five years, with a grace pe­riod of six months. The most crit­i­cal dam­ages, toxic con­tam­i­na­tion of ground­wa­ter and soil caused by the Coca-Cola com­pany at Plachi­mada, oc­curred dur­ing 2000-2004, way be­fore the time limit stip­u­lated in the Act. There­fore, this Act can­not be used to re­dress the tragedy at Plachi­mada. This is the rea­son the bill was passed by the Ker­ala Assem­bly in the first place. And it may be re­called that the ngt be­came op­er­a­tional only in May 2011.

The cola com­pany’s ini­tial re­sponse to the hpc was one of in­tim­i­da­tion. They launched a lu­di­crous mis­in­for­ma­tion cam­paign—Coca-Cola ceo Muhtar Kent mis­lead share­hold­ers in their an­nual meet­ing in At­lanta in April 2010 that the Plachi­mada plant could be re­opened any time— while the fact re­mains that it was closed by an or­der of the State Pol­lu­tion Con­trol Board in Fe­bru­ary 2004 for its fail­ure to in­stall the re­quired fa­cil­ity to treat the toxic sludge, in line with an or­der is­sued by the Supreme Court in Oc­to­ber 2003. The com­pany has re­fused to in­stall this fa­cil­ity and also de­clined to com­ply with the di­rec­tions of the Supreme Court Mon­i­tor­ing Com­mit­tee to pro­vide piped drink­ing wa­ter to the res­i­dents of Plachi­mada.

Imag­ined con­flicts

There is no con­flict be­tween the ngt Act and the bill, pri­mar­ily due to the dif­fer­ence in the tem­po­ral cov­er­age.In fact, by com­ply­ing with the time limit, the Plachi­mada Bill pro­vides an ex­cel­lent com­ple­ment to the ngt Act.The Union home min­istry seems to be par­rot­ing the cola com­pany ar­gu­ment that the state Assem­bly has no leg­isla­tive com­pe­tence to en­act leg­is­la­tion to re­dress the dam­ages in the ar­eas of health, agri­cul­ture, labour (loss), an­i­mal hus­bandry and ground­wa­ter, ig­nor­ing the fact that all of them are in the State List (II un­der the Sev­enth Sched­ule) of the Con­sti­tu­tion.The home min­istry has no pow­ers to de­cide on the leg­isla­tive com­pe­tence of a state Assem­bly, that power is vested with the ju­di­ciary alone.

The Plachi­mada Bill does not, by any means, con­flict with the Cen­tre’s pow­ers with re­gard to im­ple­men­ta­tion of in­ter­na­tional treaties as pro­vided by Ar­ti­cles 253 and 246, as the Cola lawyers had vainly sought to ar­gue. It flows from the State’s Con­sti­tu­tional re­spon­si­bil­ity to act upon the vi­o­la­tion of Ar­ti­cle 21 and has got noth­ing to do with any in­ter­na­tional dec­la­ra­tion. Be­sides ful­fill­ing the State’s obli­ga­tion in terms of Ar­ti­cle 21, as in­ter­preted by the Supreme Court, the bill is also based on the pol­luter pays prin­ci­ple that has be­come an in­te­gral part of our ju­rispru­dence.The en­act­ment of this law will re­main a crit­i­cal con­tri­bu­tion in en­forc­ing a le­gal regime for the sus­tain­able man­age­ment of scarce nat­u­ral re­sources of the coun­try, as un­der­lined by the Supreme Court judge­ment in the 2G scam.

It is sur­pris­ing then that while the home min­istry’s new let­ter refers to the re­sponses of the depart­ment of le­gal af­fairs and the So­lic­i­tor Gen­eral that favour the cola com­pany, it tac­ti­cally ig­nores the cat­e­gor­i­cal sup­port to the bill ex­pressed by the min­istries con­cerned.The Plachi­mada Bill rep­re­sents a new low in In­dian polity, ex­pos­ing its patho­log­i­cally il­le­git­i­mate ways of ma­noeu­vring to pro­tect the in­ter­est of multi­na­tional com­pa­nies as op­posed to In­dia’s poor. This sub­ver­sion of the Con­sti­tu­tional process must be chal­lenged by demo­cratic In­dia.

The au­thor is an ecol­o­gist spe­cial­is­ing in in­ter­na­tional en­vi­ron­men­tal pol­icy. He was the en­vi­ron­ment ex­pert mem­ber of the High

Power Com­mit­tee to in­ves­ti­gate the Plachi­mada case


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