New Delhi: Rejecting Vedanta Ltd’s petitions against the closure of its Sterlite Copper plant in Tamil Nadu’s Thoothukudi, the Madras High Court Tuesday dismissed the mining giant’s claims of being “victimised” and asserted that the economy reigns supreme when pitted against the environment.
“The Courts have held that when it comes (to) economy pitted against the environment, the environment will reign supreme. Therefore, economic considerations can have no role to play while deciding the sustainability of a highly polluting industry and the only consideration would be with regard to safeguarding the environment for posterity and remedying the damage caused,” observed a bench comprising Justice T.S. Sivagnanam and V. Bhavani Subbaroyan.
“The petitioner being the biggest in the area cannot plead that they have been singled out and victimised when they have been found to be a violator,” it added.
The court also refused to accept Vedanta’s contention that the closure was a “knee-jerk reaction” to the fatal firing incident of May 2018, when over a dozen protestors had died.
“Therefore, we hold that the orders rejecting the application for grant of consent, directing closure, permanent sealing of the petitioner industry cannot be treated as knee-jerk reaction pursuant to the unfortunate shooting incident, but it is a culmination of various issues solely attributable to the petitioner,” it observed.
The court was hearing 10 petitions filed by Vedanta, seeking different reliefs. Among other things, it had challenged the order passed by the Tamil Nadu Pollution Control Board (TNPCB) in April 2018, rejecting its application for renewal of consent to operate under Section 25 of the Water (Prevention and Control of Pollution) Act 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act 1981.
It had also challenged the order passed by the state government in May 2018, endorsing the TNPCB’s view and directing permanent closure of the plant.
Rejecting these petitions, the court highlighted the continued violations of environmental norms by the company. It also rejected the contention that Vedanta’s rights under Article 19(1)(g) (freedom to practice any profession, or to carry on any occupation, trade or business) were being violated.
The court pulled up the authorities for lapses on their part too.
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Over two decades of litigation
The plant has been embroiled in litigation since 1996, soon after permissions were granted to it to operate in Tamil Nadu.
The HC’s Tuesday judgment took note of the “shocking reality” that for a substantial period of time between 1995 and 2018, the plant was operating without valid consent to operate. They were either operating on account of court/tribunal orders or had their application for renewal of consent pending.
“Thus, the petitioner has operated for 16 years and 92 days without consent from the TNPCB, it has operated for 10 years, 2 months and 15 days without a HWM (hazardous waste management) authorisation,” the court noted.
The 2018 order was passed by the TNPCB after it noticed 11 violations under the Water Act and six under the Air Act in March 2017, during an inspection. The violations mentioned that the unit had not removed the copper slag dumped along the rivers nearby obstructing their flow; lacked valid authorisation under the Hazardous and Other Waste (Management & Transboundary Movement) Rules 2016; didn’t have authentic reporting on the presence of Arsenic in the ambient air; and failed to construct a gypsum pond.
Its consent to operate was then renewed in September, until March 2018, with certain conditions. In January 2018, Vedanta applied for renewal of consent to operate under both Acts for a period of five years, until March 2023.
In the meantime, starting February 2018, protests against the plant began gaining steam, and in May, more than a dozen people died when police opened fire on protesting villagers.
Soon after, the government order endorsed the TNPCB decision, while taking note of the mandate under Article 48A of the Constitution and the public interest involved. It then directed permanent closure and sealing of the industry.
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‘Reform, one step at a time’
Vedanta had submitted that the order of sealing the industry was passed “with a sole aim to divert the national attention from the administrative lapse of the State of Tamil Nadu and the local administration in failing to control the law and order situation with the aim of appeasing the public protests and for political consideration”.
The court was, however, of the view that the decision was not “malafide or on account of extraneous consideration or political consideration or a colourable exercise of power”.
As for the contention that other 101 red category industries also did not have authorisation under the hazardous waste rules, the court said, “This is a sorry state of affairs, the reasons are unknown but that can hardly be an argument to exonerate the petitioner”.
On similar lines, the court also rejected the contention that the company was being discriminated against.
“Where size is an index to the evil at which the law is directed, discrimination between the large and small are permissible and it is also permissible for reform to take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,” it said.
‘Voice of people cannot be scuttled’
Vedanta had also told the court that the people in the Thoothukudi district want it to continue functioning there and that the district is “safer than Chennai”.
The bench, however, “outrightly rejected” such contentions, taking note of a compilation filed by the TNPCB. This contained the details of all the complaints filed against the company over the years, by the public as well as political parties.
It also noted that according to the central government report titled, National Clean Air Programme dated 10 January 2019, Thoothukudi was the only district from Tamil Nadu that made it to the most polluted cities in the country.
“Considering the amendments brought about to the Water and Air Acts, which give a role for public participation, the Government is bound to take note of the voice of the public and it cannot be scuttled,” the HC asserted.
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‘No fundamental right to establish polluting industry’
While the company had questioned the power of the state government to permanently close and seal the industry, the court said the Air and Water Acts confer such power on the government.
It also rejected Vedanta’s contention that the state government’s order of closure violated its right under Article 19(1)(g). It pointed out that firstly, Vedanta was not a ‘person’ to avail the right, and secondly, that in any case, any action taken in public interest can be considered as a “reasonable restriction” of the rights under Article 19(1)(g).
The bench asserted that Vedanata “had no fundamental right to establish a polluting industry”. It further said that the conditions imposed while granting orders of consent are “sacrosanct, non-negotiable”.
‘Silent spectators to illegality’
The court also highlighted various violations of environmental norms by the plant. It noted that the unit was given consent to operate at different points of time, after imposing conditions for such operation. It, however, pointed out that Vedanta continually failed to comply with such conditions.
This included zonal disqualification, violation of green belt requirements, improper disposal of copper slag, and effluents and heavy metals leaching into groundwater.
It also pointed out lapses on the part of the authorities over the years. For instance, it noted that the industry’s application for renewal under the hazardous waste rules was kept pending, during which time the company “continued to handle and dispose of hazardous and other waste as per their whims and fancies”, the court said.
“Thus, we find that the TNPCB had failed to properly monitor the Hazardous Waste Management procedures adopted by the petitioner, which ultimately boils down to the fact that the hazardous waste authorization was not renewed and yet the petitioner continued to carry on production, generate and handle hazardous waste,” it observed.
The court said that “stringent action has to be initiated against the officials of the TNPCB who were in-charge at the relevant point of time equally the superior officers and others at the helm of affairs of the Board”.
“All of them were silent spectators to the illegality,” it observed.
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It is shocking to read the ridiculous and flimsy reasons quoted by the Madras High Court in this case.
As an Indian I am ashamed.