Justice denied


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HAVING discharged massive volumes of pollutants into the Chaliyar river almost every day for 34 years, caused the death of hundreds of villagers, wrecked the health of many more, used up the bamboo forests and having converted thousands of hectares of natural forests in the state into monoculture plantations – the Birla group Grasim Industries has annou-nced its decision to close down and sell off its factory at Mavoor in Kozhi-kode district, Kerala.

Grasim Industries had suspended production at its pulp and fibre units at Mavoor in May 1999 in the wake of an intense struggle against environmental pollution caused by the factory. Within a short time, the people’s movement had enrolled supporters from many walks of life and gained much media attention. It had caused a few embarrassing moments for government departments and the statutory authority for controlling pollution, the Kerala State Pollution Control Board (KSPCB), and led to several public interest petitions being filed in various courts of law. The agitation managed to put the company in a tight spot from where it could not have run the factory any further without investing close to Rs 200 crore on pollution control.

Yet the Birlas’ decision to close down the unit probably had nothing to do with compulsions of pollution control exerted by the state and its arms of law. The deciding factor could have been that there was no guarantee of return on additional capital investment because raw material had become scarce and the system of heavy state subsidies on inputs, without which the company wouldn’t have run so far, was not going to last for long.

Compared to the high-pitched campaign last year, a disturbing silence now prevails in Mavoor and the villages on the other bank of Chaliyar. People exposed to pollution are dying in unusually large numbers in the Chaliyar villages. As much as 29 deaths out of 136 (21%) reported in the death register of the panchayat of Vazhakkad in 1999 were due to cancer. Among the workers of the factory too, there are several who await a similar fate on account of pollution-induced diseases. But they do not dare to seek compensation and rehabilitation because such a demand would weaken their trade unions’ stand that the factory should be reopened at all costs. In their desperation, the workers can think of no alternatives to this killing job in an unsustainable, polluting industry. The people of the pollution hit villages, who had changed their demand from ‘pollution control’ to ‘permanent closure of the unit’ only last year, are also not hopeful of forcing the polluter to pay for the damages. Apparently, they have little hope that justice will prevail. ‘If what the several arms of the state and the judiciary have "achieved" in the last three decades on the issue is not proof enough,’ they say, ‘look at the state’s response to the present crisis.’



The industries department is toying with the idea of handing over the Mavoor plant to a new company for settling the issue and the labour department is preparing to ‘settle’ the same in an industrial tribunal or a court of law as if it were a mere industrial dispute. ‘The same old game of passing the buck by which the Birlas, the state and the courts have propped up the unsustainable unit for the last 37 years!’ The public interest litigation cases filed in the Kerala High Court have been languishing for over a year now and most of the pleas contained therein have already become infructuous. All the three petitions filed before the National Human Rights Commission have been closed without even a hearing on the basis of an argument that other cases on the issue are pending in the courts.



Almost from day one of setting up the first industrial unit at Mavoor in 1963, the people on the banks of Chaliyar river have been opposed to Grasim Industries (formerly Gwalior Rayons) because it has caused much water and air pollution, putting life on the banks of Chaliyar in deep peril. Independent studies and observations have shown that cancer, asthma, chronic bronchitis, cerebro-vascular accidents (CVA), heart attacks, reproductive system disorders, malformation of babies, renal stones in children, and so on are common in the Chaliyar villages. Cancer mortality rate in the village of Vazhakkad alone hovers above 20 per cent. In November 1994 a health survey organised by the Vazhakkad grama panchayat found that in the five years prior to the survey, 199 persons had died of cancer in the panchayat. At the time of the survey there were 70 cancer patients. The panchayat reviewed the findings in June 1995 and found that during the period of assessment, nine more persons had died due to cancer.

The Grasim Industries factory has wiped out aquatic life from the river, plunging into misery over 30,000 traditional workers (ten times the workers employed in the factory). It has also destroyed much of the lush bamboo forests in the state. Consuming over 2,00,000 tons of raw material per year, the factory has caused the conversion of thousands of hectares of natural tropical forests into industrial monoculture plantations. The cumulative economic loss to the state exchequer in the last three decades on account of subsidizing the raw material supplies to the factory has been estimated to be around Rs 25,000 crore. The environmental damages and the cost to human life and property have not yet been assessed.

From 1963, when the pulp unit of Gwalior Rayons was set up, till 1974, when the Water (Prevention and Control of Pollution) Act was enacted by Parliament, the tool most often employed by the state to control pollution in the Chaliyar environment was the occasional admonitions by politicians. Gwalior Rayons treated them with characteristic contempt.



The other tool in the state’s armoury, i.e., setting up expert committees one after the other, has been equally ineffective, except in rare instances. The first-ever scientific committee set up in 1968 to suggest remedies to the problem of pollution, which had intensified by then with the setting up of the viscose staple fibre unit in 1968, took four years and many an agitation on the part of the people to come up with the suggestion for an effluent treatment plant (ETP). As the polluter company dragged its feet once again and the people protested, the government constituted a review committee in 1972 to study the status of implementation of the earlier report.

The proceedings dragged on for two years till the State Board for Prevention and Control of Water Pollution was set up in 1974. Needless to say, every day in all these years, the company had been discharging nearly 68 million litres of toxic, raw effluents into Chaliyar and a large volume of poisonous gases into the atmosphere. (It would take 30 years for another expert committee to take a deeper look at the raw effluents’ chemical characteristics and find it extremely toxic, even containing mercury. Before treatment facilities were set up, the effluent discharged into the river reportedly had a BOD value of 25,000-46,300 [against 30 prescribed for treated effluent] and a pH value of 2.5-4 [against 5.5-9] as was the case with the raw pH liquor stream from the pulp division).

In 1977 another expert panel, the Committee on Estimates on Prevention and Control of Water Pollution of the legislative assembly, was forced by the people to visit the Chaliyar villages and hear their grievances. Startled by the findings, in its first report submitted to the government in February 1978, the committee made 25 recommendations. The government submitted its action taken report only in August 1980. Even after a delay of two and half years, the replies given by it in respect of 15 of the 25 recommendations were found unsatisfactory by the committee, as the only answer the government could give on most of the recommendations was an evasive ‘action is being taken’. The estimates committee made scathing remarks on the government’s evasiveness and indifference as well as the pollution control board’s lack of appreciation of the significance of recommendations. It condemned the ‘adamant and arrogant’ attitude of the company management and strongly recommended that prosecution procedures be undertaken against the company management.



Meanwhile, a political discussion held in 1974 chaired by Chief Minister Karunakaran mooted an ‘ingenious’ remedy to the woes of the people of the most directly affected village, Vazhakkad: to shift the existing effluent discharge point further down the river to Chungapally by extending the pipeline 7.4 km from the effluent lagoon! However, even this infamous Ramanilayam Agreement, under which the company agreed to set up the ETP (suggested way back in 1972) and extend the pipeline to Chungapally, was implemented partially only in 1980.



It was in 1981 that KSPCB filed its first petition against Grasim Industries in the court of the first class judicial magistrate seeking to restrain the company from discharging effluents through unauthorised outlets and impose on the company officials a penalty for violation of the Water (Prevention and Control of Pollution) Act. The magistrate issued orders restraining the company from using the unauthorised outlet ‘except in emergencies.’ Subsequently, the board appealed to a higher court. Observing that ‘the magistrate of the lower court had given a blanket permission to the factory to use an unauthorised outlet during emergencies’ without specifying the emergency and that ‘such an unrestrained allowance would render the control, restriction and supervision mentioned in the act negatory,’ Justice K.T. Thomas of the Sessions Court deleted the exceptional clause in 1982. The second plea of KSPCB in the case filed in 1981, i.e., for imposing penalty on the company and its officials for violation of the Water Act, was heard at various courts and eventually dismissed in 1990.

During the same time, the people of Chaliyar villages had also approached the court with a plea under the Amended Code of Civil Procedures to protect their riparian rights over the use of the river and to restrain the company from discharging improperly treated industrial effluents into the river and poisonous gases into the atmosphere. Rejecting the company’s claims of non-maintainability of a petition under the civil code and the charge of multiplicity of litigation on the same cause of action, the magistrate issued an injunction restraining the company.

However, these injunctions did not hinder the company even a wee bit as it went on to use unauthorised outlets clandestinely under the guise of having filed appeals in the High Court. This gave it sufficient protection for a long time – in fact, till the KSPCB took up its shadow war against unauthorised outlets once again in 1995. The prolonged litigation over the use of an unauthorised outlet, though it eventually established the PCB’s authority to restrict effluent discharge to authorised outlets alone, unfortunately also pre-empted a deeper look into the functioning of the authorised outlet and the PCB’s monitoring system. The fact that the company had often used the authorised outlet in an unauthorised manner by discharging untreated or partially treated effluent was overlooked by the courts.



It took the PCB 14 more years to file a petition on the same cause of action, namely, the usage of unauthorised outlets. On this occasion the plea before the court was also to restrain the company from discharging trade effluents into Chaliyar or anywhere else until the effluents conformed to prescribed standards. The judicial first class magistrate allowed the PCB’s petition and issued an injunction order restraining the company. In the petition KSPCB had submitted that ‘separate legal action would be taken against the respondent company (Grasim Industries) for violating the earlier order of the Sessions Court dated 3 April 1982.’ But this was never done.

When the company went on appeal, the Sessions Court set aside the order of the magistrate on the ground that the environmental engineer who moved the petition on behalf of the KSPCB was not competent to do so. The court observed that the chairman of KSPCB, who had dele-gated to the environmental engineer authority to approach the court, was himself not authorised by the board to act under Section 33 of the Water Act. The court held that the powers delegated to the chairman were confined to Section 49 whereas Section 33 contemplated preventive action for which only the board itself had competence for action.



The court based its decision, among other legal precedents, on the argument in Taylor v. Taylor 1985 that ‘where a power is given to do certain thing in a certain way, the thing must be done in that way or not at all... This rule has stood the test of time.’ While acknowledging that the remedy provided under Section 33 of the Water Act was an extraordinary one, the court, however, expressed concern that such an action as prayed for by the PCB could lead to closure of the factory, loss of employment and several adverse impacts on the economy. The counter argument, that pollution of a river was an equally serious matter, was only noted in passing before dismissing the PCB’s claim ‘without prejudice to the board filing a fresh petition under Section 33 of the Act in accordance with law on the same cause of action.’

KSPCB did not pursue the case any further. In a nutshell, these two cases only succeeded in allowing the company more time to flout pollution control rules and to prevent the PCB from taking a sterner stand against pollution. Curiously, filing an appeal in a higher court and invoking the threat of sub judice had actually helped Grasim to continue, despite fear of contempt of court.

Grasim Industries was not the only one to adopt delaying tactics; the government too had perfected this technique by appointing one expert committee after another. In retrospect, the reports of these committees haven’t been worth the paper on which they were written. They were never admitted as legal evidence in any court of law. The committees included an assembly committee on environment, the petitions committee of the Rajya Sabha, an expert committee headed by the chairman of the pollution control board and finally, another committee headed by the present member secretary of the central pollution control board, B. Sengupta. Few among the many recommendations of these panels were actually implemented by the company and KSPCB’s undisguised ‘wait and watch’ policy abetted the defiant contempt Grasim showed towards these recommendations. Each new committee had turned out to be an alibi for KSPCB for furthering its inaction.



If the state pollution control board’s commissions and omissions had only prolonged the misery of the people of Chaliyar, the interventions of the Water Appellate Authority, the statutory body constituted under the provisions of the Water Act, too had the same impact. In 1989 Grasim, appealed to the appellate authority against the KSPCB’s decision to introduce more stringent limits for two indicators of pollution, namely the chemical oxygen demand (COD) and the colour of the effluent. Though the appellate authority upheld the PCB’s order in 1991, the company went on to appeal to the High Court and a prolonged litigation followed. The company also introduced additional complaints in the petition before the High Court, challenging the PCB’s right to stipulate (i) an upper limit (of 1mg/litre) for the concentration of zinc in the effluent discharged from the fibre division, and (ii) a reduced limit for the total volume of effluents discharged.

The significance of this case was that for the first time since 1963, KSPCB sought to awake from its slumber at the end of the pipeline and extend its monitoring a little deeper into the system of production by insisting on a standard for the effluent at the primary outlet point of the fibre divisions (from where the effluent went on to the ETP, common to both the pulp and the fibre divisions of the factory). This was also the first time that PCB sought a reduction in the effluent volume and the concentration of a toxic heavy metal, viz., zinc, in the effluent. With efforts underway worldwide to develop zero-effluent technologies and debate the adverse impact of heavy metal pollution, KSPCB too had to make a gesture in this direction! So the PCB fought this case over the 1 mg/litre limit for zinc all the way till 1999 and finally won it. Ironically, however, the PCB set no limit for the heavy metal in the combined effluent (from which the PCB took samples) when it subsequently issued a consent order to the factory in April 1999.



In 1996 the company again approached the water appellate authority against another order of the KSPCB denying consent to the pulp division on the basis of finding excess pollutants (COD and colour) in several samples of the effluent analysed in 1995. (There was much public pressure against the company and the board in 1995, following the death of three maintenance workers because of acute exposure to toxic gases in the effluent pipeline. The judicial first class magistrate had also restrained the company from discharging effluents until they conformed to prescribed standards). After awarding an interim stay in favour of the company, the appellate authority conducted a local inspection and heard the complaints of the victims of pollution.



The authority concluded that the cause of the peoples’ grievances was the extreme stench and colour of the effluent and that the reason for this was the practice of discharging effluent at the surface of the river. It then suggested an ideal solution to the problem: extend the effluent pipe- line another 20 odd km upto the sea. (The very same unscientific promise Gwalior Rayons had made to the people in 1963.) However, conceding the company’s argument that such an expensive project was not technically feasible and economically viable, the appellate authority came up with another ‘ingenious’ remedy: trifurcate the effluent discharge pipe, extend it to the middle of the river, and submerge it well beneath the surface of the river. (If shifting the discharge point from Kalpally to Chungapally in 1980 was an absurdity in itself, the burial of the pipeline beneath the surface of the river was its logical sequel!)

The authority argued that this would diffuse and dilute the pollutants tolerably and the stench would abate. (It also had the added advantage that neither the people nor the media would be able to see or photograph the unsavoury discharge of the black, soupy concoction into the river. The company and even the PCB had then claimed that there was no pollution in Chaliyar river water except for its colour.) By setting a time limit of six months for the company to carry out the burial of the pipes, the water appellate authority made absolute the interim stay on the KSPCB’s order. The order was conditional and had made it clear that ‘the stay will stand vacated on proven infringement of the quality of the effluents.’ And what was Grasim’s response? Absolute contempt.

Under one pretext or the other, the company did nothing in the next three years to implement the suggestion. In 1999, Justice C.S. Rajan of the Kerala High Court happened to hit upon this lapse on the part of the company and gave Grasim an ultimatum to complete the work in three months. No sooner had the company started work, a lower court stayed it on the basis of a petition filed by a local resident who alleged that the work was not being carried out at Chungapally proper as directed by the water appellate authority and the High Court. The petitioner said that as per revenue records the company’s effluent discharge pipeline built in 1980 stood at Kodavannakkadavu and not at Chungapally proper, the latter being a further 1.5 km down the river. Apparently, the multinational company with assets valued in millions of dollars had, in 1980, terminated the effluent pipeline at Kodavannak-kadavu above Chungapally in order to save on a few hundred meters length of concrete pipes! It was during the hearing of this case that Grasim annou-nced its decision to seek a permanent closure of the factory at Mavoor.



Despite of the grave situation on the banks of Chaliyar, the legal systems for pollution control has failed to deliver. Neither the victims of pollution, nor the pollution control board have so far succeeded in building up a case that goes beyond the narrow confines of the Water (Prevention and Control of Pollution) Act. Out of the PIL petitions sent earlier to the Sup-reme Court, one submitted by K.V.K. Elayath, a chronic victim of throat cancer, was rejected on the ground that he was technically not an employee of Grasim as claimed before the court; he was only an employee of the workers’ cooperative society in the Grasim factory. The second plea, sent as a letter to the SC by a victim of pollution, was not even acknowledged as received.

Equally, despite air pollution caused by the factory being an important, if not greater, threat to the health of the people and the environment, not a single significant case has so far been developed to check this menace. Even today there is just one defunct air pollution monitoring equipment in the vast area exposed to pollution covering at least 10 panchayats and a population of over 2,00,000.



The inherent weaknesses of the Water Act – it is neither strong on its science nor on the issue of peoples’ rights – have been effectively manipulated by the polluter company as well as the pollution control board to suit their convenience. The Water Act is enforced primarily through a system of granting or denial of consent by the statutory authority, the state PCB, to regulate the consumption and discharge of a set of chemicals, based on certain known harmful effects on exposure to these chemicals. The loopholes in the system are plenty.

For instance, the known harmful effects of the pollutants, for which tolerable limits are prescribed in a consent order, can be just the tip of an iceberg. As in the case of the organochlorine compounds – pulp mills all over the world have been found to be a major source of such persistent organic pollutants (POPs) – the unknown and the unidentified could be far greater than the known and the identified.

Also, the present knowledge about the vast spectrum of harmful effects of chemicals is insufficient. The system of fixing tolerance limits raises several questions: Do these limits sufficiently account for differences in species, gender, age, region and nutritional levels of the exposed organisms? Do they hold good for chronic exposures over a long period, say three decades as in the case of the Chaliyar river pollution? Given the possible variations in chemical reactions and the plethora of combination and break-down products possible in a chemical system, how tolerable is the system of fixing tolerance limits?

The functioning of the system of consent issued by the PCB depends essentially on mutual trust between the potential polluter and the pollution control agency. To point out just one instance, the bio-assay tests for toxicity of the effluent is required to be conducted by the industrial unit and not by the PCB. A host of chemicals not listed in the consent order can be used by the industry. Grasim Industries is known to have used several such chemicals, including known carcinogens such as sodium pentachlorophenate and mercury. (Even after several academic research studies establishing the presence of excessive concentrations of mercury and other heavy metals in the water and sediments of the Chaliyar river, the PCB could not detect any toxic elements or even feel legally bound to look for them in the samples.)

The enforcement mechanism under the Water Act gives rise to many other questions. Can the system of end-of-the-pipeline regulation work effectively, given the technological incapacity and the propensity towards corruption of the PCBs?

The abiding spirit of the Water Act is neither that of the ‘precautionary principle’ nor the ‘polluter pays principle’. Instead, ‘balance of convenience’ is the underlying spirit of the act. In the case of pollution in the Chaliyar river, the balance had so far been tilted in favour of the polluter company and the various arms of law that collude with capital, than in favour of the victims of pollution.