CONTITUTIONAL issues underlie the deadlock that persists in Plachimada. More specifically, the entire debate is centred on the rights of panchayats. Not only is the Perumatty Grama Panchayat pitted against the Hindustan Coca-Cola Beverages Private Limited (HCBPL) and the Kerala government, it is ironically having to take on the local self-government department also. In fact, it was the latter's directive to have the matter investigated afresh by officials of other departments that prompted the panchayat to file a writ petition in the HC. In doing so, it asserted its rights under article 243 G of the Constitution of India.
The article vests powers in the state governments to endow panchayati raj institutions with the authorityto handle 29 subjects listed under the the Eleventh Schedule of the Constitution. Several key functions like drinking water requirements, minor irrigation works, overall water management, and health and sanitation figure in this schedule.
The Kerala government has devolved all the 29 functions to panchayats through the Kerala Panchayati Raj (KPR) Act, 1994. The act clearly empowers village bodies to regulate the use of a place within its area for specified industrial purposes by issuing or refusing to issue a licence. Chapter 20 of the act deals with public safety, convenience and health, including waste disposal. It was this provision that the Perumatty panchayat invoked to cancel Coke's licence. The Kerala Panchayats (Licensing of Dangerous and Offensive Trade and Factories) Rules, 1996, issued under sections 232, 233 and 234 of the KPR Act, provide further details and procedures in the matter of issuance of licence. Further, section 218 of the act stipulates that all waterworks are to be handled by panchayats. In addition to these, section 234 (c) gives the panchayat the right to implement water supply schemes and sewerage works.
In view of the above, one of the most important functions of a panchayat is to ensure that community members get an adequate supply of pure drinking water. The Perumatty panchayat stressed that it was not being able to meet this constitutional obligation because of the contamination of drinking water by the Coke plant. It further emphasised: "In exercising (such authority), the government has no power to dictate to a panchayat."
While there may be conflicting views about constitutional provisions in respect of the power of panchayats, the Perumatty village body has cited two recent cases where the judiciary upheld the autonomy of panchayats.
One was delivered by the Kerala HC in 1996 in the 'Manjapra Grama Panchayat versus State of Kerala' case. The Supreme Court passed the other order in 2002 in the 'Action Council, Poovathode versus Benny Abraham' case (see box: SC's endorsement). In both the instances, the respective panchayats -- Manjapra Grama Panchayat in Ernakulam district and Poovathode Grama Panchayat in Kottayam district -- had refused to grant licences to metal crusher units since they could affect the health of the local people.
Justice K S Radhakrishnan of the Kerala HC had stated in the Manjapra case: "The mere fact that the district medical officer and pollution control board have issued no-objection certificates does not mean that the panchayat should give licence to an applicant." The HC said that the panchayat itself could "independently consider" whether a metal crusher unit would affect the people of the locality. The judge added: "The panchayat has got such powers and duties as to enable (it) to function as (an) institution of self-government."
Even in the Plachimada case, the HC's decision to refer the company back to the panchayat shows that the court respected the jurisdiction of a local government elected under a constitutional provision. Coke moved the court insisting that the panchayat is "subordinate to the state government and is expected to follow the...guidelines issued by it". But Krishnanakutty reacts sternly: "How can a multinational company question the authority of a local body empowered by parliament?"
(With inputs from Surendranath C in Thiruvananthapuram)