On December 11, the National Green Tribunal concluded the hearings on Vedanta’s appeal against the Tamil Nadu government’s order shuttering the company’s copper smelter in Thoothukudi. The hearings, conducted over 100 days starting September, ended without a decision on the legal status of the interveners in the matter – politicians Vaiko and KS Arjunan, Thoothukudi resident Fatima Babu and the influential local merchants’ association official S Raja.
The interveners have faulted the tribunal for refusing them a hearing. It takes a written order for an application for intervention – granting the intervener the status of a legal respondent entitled to receive all court submissions and empowered to make arguments – to be allowed or disallowed. If the application is disallowed, the intervener can appeal the Supreme Court to reverse the order. In this case, though, the tribunal concluded the hearings without allowing or disallowing the application, keeping the interveners in “a state of limbo”, as Vaiko rightly put it. The interveners said they were denied access to reports the company relied on for its arguments, and any reports shared with them were given as a concession rather than a right.
This marginalisation of intervening civil society representatives was irregular in itself. But in this case, where Vedanta was challenging a government order prompted by the killing of 14 persons during a massive demonstration against the polluting factory in May, denying Thoothukudi’s residents the right to intervene felt particularly jarring.
The hearings appear to have proceeded almost ritualistically. The interveners claimed important questions were not dealt with seriously. These included queries about their legal status and the right to access documents, the integrity of the panel set up by the tribunal which eventually held the factory’s closure to be illegal. Some were summarily dismissed; others were not heard at all.
In September, the tribunal appointed a committee under retired Justice Tarun Agarwal to decide if the grounds for closing the factory were valid. Pointing out that Agarwal’s name had featured in the Ghaziabad Provident Fund scam, Fatima prayed for the panel to be reconstituted under a judge of impeccable credentials. Her application was dismissed without a hearing. The tribunal directed the panel to conduct its enquiry and said the interveners were free to make representations to it. But it did not provide any formal status to the interveners, neither did it reject their application.
Going beyond its brief
The Agarwal committee was tasked solely with verifying the facts of the case but it assumed the mantle of an adjudicating authority. While the committee’s report found the company in violation of several statutory conditions, its conclusions pleaded for leniency, arguing the Tamil Nadu Pollution Control Board’s order closing the factory were not maintainable as they violated the principles of natural justice. It said the board had not offered Vedanta an opportunity to respond before rejecting its application for the renewal of licence or ordering its closure. The committee, though, concurred with three of the five statutory violations cited by the board.
The flouted laws – the Water Act, Air Act and Environment Protection Act – allow the regulators or even the green tribunal no discretion to determine the consequences for the violations. Yet, the committee argued that the penalty for the factory’s violations was too harsh – closure or rejection of licence as contemplated by Parliament while enacting the law.
As for the other violations, the committee recommended that the company be given another chance. In 1995, the Pollution Control Board had directed the company to develop a 25-metre green belt around what was then a 40,000-tonne per year production facility to protect the surrounding areas from ground-level toxic emissions. By the time of its closure, the smelter’s capacity had increased 10-fold but the green belt requirement remained the same. Still, as of 2013, the company had developed neither a 25-metre strip nor a 43-hectare green belt prescribed as a mandatory condition of the plant’s environmental clearance from the central environment ministry. But that year the Supreme Court permitted the factory to continue operating following the company’s assurance that it would comply with the green belt requirement and other conditions.
The Agarwal committee visited the factory in September 2018 and found a “concrete jungle” devoid of any greenery. Yet, it asked for offering Vedanta another chance to rectify the situation. What the Supreme Court’s order had failed to achieve, the committee apparently hoped to bring about through its gentle recommendation. Never mind that Sterlite has no land to develop any green belt. In 2007, the company received permission to expand the smelter after fraudulently claiming to have 172.17 hectares of land, of which it said 43 hectares would be developed as a green belt. The company had only 102 hectares, and that has not changed.
On November 28, the green tribunal opened the Agarwal committee’s report and read selectively from it. The sections it read conveyed an impression that the committee had given a clean chit to Sterlite – and this notion was widely reported in the media. The New Indian Express, however, published an article showing “how the company flouted norms over the years and the Tamil Nadu Pollution Control Board allowed it to have a free run”.
The interveners requested for a copy of the committee’s report but were turned down, with the tribunal declaring they could only assist the state’s counsel and not speak independently.
Meting out dismissive treatment
This did not go down well with the interveners. In an attempt to avoid being trapped in the collusive relationship between the polluting company, the insincere state government and the crony regulator, Thoothukudi’s civil society had prayed to speak for itself before the tribunal. After all, the Tamil Nadu government and the Pollution Control Board had not just ignored but facilitated Sterlite’s violations for decades before the situation turned ugly and innocent people were killed in May this year.
So, on December 5, Fatima Babu filed a miscellaneous application, arguing the green tribunal’s refusal to hear the interveners and provide them a copy of the Agarwal committee’s report violated the principles of natural justice. She also sought legal status as a respondent as well as a hearing to consider her application. The application was still not considered during the hearing two days later.
At the conclusive hearing on December 10, the tribunal heard arguments of the Tamil Nadu government and its pollution Board and counter-arguments from Vedanta. Only at the tail end did it listen to Ritwick Dutta, counsel for Raja and Fatima. It was close to 3 pm and “everyone was tired and hungry”, said one observer who was in the court that day. Dutta sought a copy of the committee’s report, time to go through it, full status as a respondent for the interverners and an opportunity to argue on the merits and maintainability of Vedanta’s challenge. The tribunal rejected his plea and reserved its final order until December 17.
Dutta argued that any order, conditional or otherwise, in favour of reopening the smelter would violate the principles of natural justice since the parties affected by it – civil society representatives from Thoothukudi – had been denied an opportunity to be heard.
Fourteen people were killed trying to highlight Sterlite’s violations and enforce the public’s right to a clean environment, a right expressly mentioned in the preamble of the law that created the National Green Tribunal. The dismissive treatment meted out to civil society interveners from Thoothukudi by the tribunal, led by Justice AK Goel, does not bode well for citizens hoping for some relief from environmental predators. Regardless of the content of the order to be pronounced on December 17, the manner in which the hearings were conducted leave a lot to be desired. They also suggest that Goel really means what he has said about matters brought to the tribunal: that 50% of them are “cases of blackmailers” and “not related to the environment”.
Nityanand Jayaraman, a writer and social activist based in Chennai, has been involved with the struggle against Sterlite’s smelter in Thoothukudi since 2003.