Green justice: up in smoke?

Aided by officialdom and politicos, polluting industries seem well cushioned against thunderous court orders

By Sujit Chakraborty
Published: Saturday 30 September 1995

Green justice: up in smoke?

Streams of Habes: toxic efflue FROM the look of things, the age of environmental justice has arrived: the courts everywhere in the country, especially in Gujarat and Delhi, are issuing orders for the closure of polluting units right, left and centre. The NGOs are exuberant. The workers are worried about losing their jobs. State governments and pollution control boards (PCB) stand chastised and confused. Dreams of an industrial boom lie shattered. Industry is angry. And green judges and greener lawyers are making headlines.

But that's about all: the look of things. Because, for all practical purposes, nothing much is changing. Industry is continuing, almost as if the courts didn't matter. The PCBs and other state agencies are trading charges with each other, and industry is hollering at them all. And smoking chimneys and stinking, poisonous nullahs (effluent-carrying drains) remain the gangrenous symbols of an environmental Hades.

The Supreme Court (sc) cases ensued when advocate Mahesh Chandra Mehta filed a writ in the sc'against the Kanpur tanneries polluting the river Ganges in 1985. The case came to be known as the "Ganges Matter". Later, its scope was extended to include units ' in West Bengal. Delhi's polluting unit's were booked for setting up operations in nonconforming zones, or manufacturing hazardous items not allowed in their areas of operations. The Gujarat cases were the upshot of a public interest litigation filed in the High Court by advocate AjitPadiwal in June 1993.

But till date, only a couple of units have been closed down on pollution charges in West Bengal and Gujarat. The travesty of justice is perhaps the most glaring, right under the nose of the Supreme Court, in Delhi. Bureaucratic negligence and inefficiency, and politics of all denominations have seen to it that nothing really changes.

Confounding confusion To start with, the court's orders asking the Delhi units to be relocated was almost purposefully distorted. Says Delhi Factory Owners Federation (DFOF) chairperson, J R Jindal, "The notices caused a lot of confusion in the industrial sector, as it asked for immediate closure of the units. So we went to the sc on May 5 to seek clarification." Three days later, the sc clarified, "There is no order for instant closure of industries by this court." The orders were only to shift polluting industries out of Delhi.

Jindal actually derived support from the chairperson of the Delhi Pollution Control Committee (DPCC), D S Negi, who says, "The CPCB had wrongly read the order and did not interpret it correctly."

About 145 units simply did not accept the notices. And the vanguard of fighting pollution - the Central Pollution Control Board (CPCB)- reacted with sheer lack of concern. Says Dilip Biswas, chairperson Of CPCB, "We are not bothered about that, since public notices have already been issued in the newspapers."

However, while industry refused to buy this argument, the sc concurred with the CPCB, holding that once the notices have been published in the newspapers they are "deemed to have been served."

But all this was of little consequence, because the units remained functional all the same. The court's clarification that there were no orders for closure sent things back to square one. Jindal says that they went back to the state government and, terming the termination of electricity and water supplies as 'illegal', got back their power supply and licences.

Meanwhile, Deep Chand Bandhu, president of the Delhi state unit of the Congress, alleged that the list drawn up by the Bbaratiya Janata Party (BJP) government was partisan. Bandhu told Down To Earth, "The Khurana government has deliberately given wrong names. They are just minting money." Bandhu's contention is that among the units named were some shops, having nothing to do with industrial pollution. Bandhu names Kirori Engineering Works and Vichitra Printers as large units which have been purposely left out of the list of polluting units.

At least 4,045 notices have come back undelivered,' with the postal department reporting change of address, addressees who have left, and units which are already shut down. The excuse for all this is shamefully flimsy. Jindal says, "The factory owners are illiterate and are always scared of accepting any kind of notice." At the ground level, -delivery of notices and even implementation of closures are directly influenced by local muscle power. "These units have all come up illegally anyway, with the help of political goons. Unless armed cops are sent, you cannot force even a tiny manufacturer to receive a notice," says Vasant Dubey, a newspaper reporter on the crime beat.

All the political parties are doing their best to sabotage the sc's efforts. They are openly arguing that relocation will take the bread away from lakhs of Delhi'ites. M C Mehta, however, holds that most of the workers come daily from the adjoining states, which means that they can as easily work in the relocated areas.

But what is even more intriguing is that when objections were filed, the exact number of polluting units were found to be far below what the Dpcc had said it was. The status report filed with the sc on August 25 puts the number of objections filed at 2,224. Out of these, 170 were found to be hazardous (H- category), to be shifted out of Delhi; 1,400 units ranged from. categories B to E, to be relocated within Delhi itself; and 654 tiny establishments were mostly repair units, and do not need to be shifted at all. This lends credence to the allegations of the state Congress leadership.

Partisan politics
Trade union politics is also in favour of the polluting units staying back in Delhi. The Centre for Indian Trade Unions (CITU), affiliated to the Communist Party of India-Marxist (cpi-m) and the Communist Party of India-led (cpi) All India Trade Union Congress (AITUC), reacted sharply to the relocation orders.

However, in Delhi, some of the industries seemed more than willing to vacate and cash in on the real estate value of their present locations. Birla Textiles, for instance, has about 200 acres under its possession in prime Delhi localities. And it is in this context that the dubious role of the Communist trade unions becomes even more obvious: they are insisting that the industries stay on and keep polluting Delhi, to keep their political base intact!

The situation in Gujarat exposes similar problems, though the nature of the case is different. In 1993, advocate Aj it Padiwal had filed the case in Gujarat High Court (GHC) under the provisions of the constitutional right to a clean environment (Article 21), the state's duty to maintain such an environment (Article 48-A), and the citizen's duty towards environment (Article 5 1 -A). The GHc has clearly endorsed this. On April 24, the court held that it was the "Constitutional imperative" of the state and the municipalities to safeguard the environment.

But all this thunder amounted to little. While the court first ordered some 68 units in the Vapi area to be shut down within 48 hours, 18 days later, the units were given a breather and the deadline was extended.

Industry, which had been booming with a Rs 53,91 1-crore investment in the 450 km-long and 40 kin-wide "golden corridor" in Gujarat, is now laying the blame at th feet of the state authorities. Vinod Mehr , vice-president of the Vapi Industrial Association (VIA) complains that the st4te government had been collecting m8ney for setting up a common effluent treatment plant (CETP) since 1985. The techno- feasibility report of the project had been finalised in 1987, but at the last moment, Mehra points out, the Istate government decreed that only*the Nagpur-based National Environmental Engineering and Research Institute (NEERI) can design the CEM4 Says R R Desai, president, VIA, "The government is interested only in methodology. NEERI took 4 years to submit its report. Of the 12 options, one was given to the Kirloskars, who took another year to draw it up." By that time the cost had climbed from the original Rs 6 crore to Rs 20 crore.

In Gujarat, as in Delhi, there have been serious complaints that the PCB has listed some wrong units as pollutants. In Vapi, 23 units, which had already set up their own CETPs, are still being made to pay for the Ahmedabad Municipal Corporation's CETP. There has also been much talk about the "politically motivated" list naming only the "small fries", as Padiwal says, leaving out companies like United Phosphorus Ltd (UPL), a notoriously polluting unit.

Little hope
In Ahmedabad, the government had ordered the closure of 756 units. At least 70 per cent of these have managed to procure a stay order from the GHC in May, on the plea that they will have their FTPS set up within 60 days, The court ordered the state government to deal with the remaining 30 per cent of the units as it deemed fit. By the end of July, only 78 of the original 756 units had been shut down by the government. Another 34 closed on their OWD.

But the latest reports say that despite power and water supplies being slashed, many of the units are operating with generators and borewells - both measures further damaging the environ- ment. Padiwal says he is collecting evidence to file contempt cases, but that means another long round of court hearings. The GPCB is obviously not doing its job, as the court has repeatedly said. However, F D Salunia, Member- Secretary, GPCB says, "We have filed 2,500 cases in the courts. That is about 50 per cent of pollution cases filed in the whole country. If nothing is happening, it is the judiciary to be blamed." Nothing is happening, and in the latest hearing (August 31), the GHc has asked the state authorities tG close down all the 756 errant units of Ahmedabad by January 1, 1996, unless they mend their ways. And on September 1, 26 units in Nandesari were also asked to clean up or close down.

But will the state abide by the court's latest orders? The example of Maradia Chemicals of Surendranagar robs one of such fond hopes. The Gujarat Ecological Commission (GEC) had taken up the case of this unit, which produces hazardous chemicals, with the GPCB. Nothing happened. Bharat Pathak, director, GEC says, "When we kept getting more and more complaints, we referred the case to the cpm which in turn referred it back to GPCB. The GpcB has now certified that the effluents are within limits."

The GP6B has its excuses for inaction well laid out. Salunia says, "Even if all the units around Ahmedabad were to treat their effluents up to GPCB norms, still it would not help, as long as the GJDC does not construct drainage channels to take them away."

In West Bengal too, the same disirfal picture repeats itself Only a handful 6f industries have been shut down so far on charges of being polluters. The single biggest Flourh obstacle here is the state government and the CITU. The pollution cases here started as an extension of the Ganges Matter. The east Calcutta tanneries, some 70 odd municipalities, power producing units, the Howrah station and about hundreds of industries had been brought into the ambit of the case, which started off with an order for shifting of tanneries from the Tangra and Topsia areas east of Calcutta.

The sc has been ordering closures since 1993. But till date, only 2 polluting units have been closed down: P-minatnn Rand and Crooksons. In fact, the closure orders came as a boon to some companies, like Remington Rand, because the company had been sick and it suited them to close down anyway.

In its last hearing on August 21, the sc had asked the WBPCB to ensure that 30 units be closed down, unless they install ETPS. The PCB cleared 15 out of these after the latter claimed to have set up ETPS, but on further inspection, it has been found that 12 out of these are not running their ETPS. The PCB has complained that Allied Raisins of Budgebudge has been warned thricSand is still unwilling to mend its ways. , The sc has slapped a Rs 5,000-per day fine on the company and threatened to shut it down latest by September 22.

NGOs to the fore
One key aspect of the WB pollution cases is the complaint signed by 7 major trade unions, at the behest of the Calcutta based NGO, Nagarik Manch, which pleaded with the sc to ensure occupational health. The court had directed the PCB to inform it about specific cases. The sc had also directed the Manch and the other trade unions (TUS)tO file a detailed report on occupational health hazards with the PCB, a copy of which was to be filed with the court too.

Till date, however, none excepting the Manch has filed a report. The last date for submission was August 31. In the first week of September, Nabo Dutta, convenor of the Manch told Down To Earth, "The PCB has issued show causes to the chairpersons of the Calcutta Municipal Corporation and ieveral other municipalities, the Coal India Ltd, Jayshree Textiles, and the state government's ministries of labour and environment, asking them to respond to the Manch charges against them. The hearing is slated for September 22."

is the PCB in this state better than in the other states? Several officials of this same WBPCB are being prosecuted, under orders from the sc, for having issued fake environmental clearance certificates early this year. Dutta says, "It is not a matter of the PCB being good or bad. But the fact remains that in WB the chairperson, the law officer or the Member- Secretary are not only honest but interested in the issues involved. However, it has been established that a semi -governmental organisation like the PCB just cannot get into day-to-day monitoring. Unless there is people's participation, this cannot be solved."

Pollution control in WB, too, has been the victim of politics. The sc's first list of 13 units to be shut down had come in 1993. It included Development Consultants Ltd, owned by Sadhan Dutta. Political sources describe him as Chief Minister Jyoti Basu's personal friend and financial adviser. Basu had sent state Advocate General, Naranarayan Guptoo, to plead against the closures, which would harm the state's industrial growth. The WB government has been repeatedly pleading for more time for the industry. The court has been specially telling Somnath Chatterjee, chairperson of NvBmc, to take a "personal interest" in the matter. However, the state authorities have told the workers that they cannot do anything about the closures.

The government is much too eager to re-industrialise the state. The euphoria generated by the Confederation of Indian Industry holding its 150th anniversary in Calcutta earlv this year, and the pronouncements of ihe foreign captains of industry, that Calcutta will lie India's Singapore, has meant that the ,,overnment just cannot afford to let the industrial scene show any sign of depression.

Secondly, with the hype about rarian reforms having run its course political bestseller for the cpt-Ni, the party is now hard put to find any new usi, (or unique selling point) to be used in the next trials at the hustings. Urban employment remains the only new election peg.

It is for this reason that CITu has been sliming out of any effort by the TUS and the Nagarik Manch to intervene in the Ganges Matter. in the beginning of April, the Manch had initiated a move for the TUS to petition the sc to ensure the livelihoods of workers in units shut down on pollution charges; to impose fines on the erring entrepreneurs; and to take cognisance of a huge number of cases of occupational health problems arising out of environmentally unsound workplaces. All the major'FUS, including Indian National Trade Union Congress, the AITUc and others, signed the petition, but not crfu. Any court measure on these issues would directly harm the entrepreneurs.

Says Nagarik Mancha's Dutta, "Chittobrata Majumdar, who is the chief of the state CITU unit, has been seen around as one of Jyoti babu's key persons in creating a West Bengal free of the notorious labour trouble. Naturally, CITU is opposing any move against industry. It is their party's strategy. Besides, they are extremely wary of any NGO taking over what they think is their sole province - labour; so they won't join even a positive effort, because we are involved." Majumdar, however, explains CITU's not joining the Tu and NGo effort, "The courts cannot issue blanket closure orders as each unit has its own specific problems."

Justice delayed
But what has left the largest question mark on the court cases relating to polluting units is the fact the courts are constantly extending deadlines. First, the judiciary is cracking down, issuing what industry has described as "ridiculously short" deadlines for cleaning up. But later, on appeal, the courts are relaxing the noose around industry's neck. So, is the judiciary playacting? Without commenting on that, Nabo Dutta of the Calcutta-based NGO, Nagarik Manch, told Down To Earth, "Closure is the last option. But under the relevant acts, the courts and the governments can make the lives of errant ehtrepreneurs hell, if they want to. There are provisions for jailing, fines up to Rs 5 lakh, attaching of property, and what not... to ensure that the entrepreneur implements pollution control measures. These can and should be tried first, so that pollution control remains a worker-friendly action. Closures will not solve the pollution problem."

The future of the cases is difficult to predict. In the beginning of September, the highest court in the land admitted to being swamped with pollution cases, and actually appealed to the lawyers' associations across the country to "suggest measures to make environment pollution free." And given the state of the country's polluted politics and politicians, there seems little option but to strengthen the NGO movement and popular resistance, to ensure a clean environment.

With inputs from Max Martin in Calcutta, Madhumita Dutta in Delhi and Himanshu Thakkar in Baroda

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