Vedanta - serial offender at large

We Must Seriously Question Legal Impunities Enjoyed by the Likes of Vedanta

Sakshi Aravind

The Wire

8 June 2018

The recent spate of events in Thoothukudi, which saw a violent and unprecedented state response to people protesting against pollution caused by Vedanta’s Sterlite copper plant, has evoked several questions about the integrity of environmental laws in India and the state of environmental justice.

The Vedanta Group that owned the plant appears to have faced only minor inconvenience as a result of the withdrawal of the land allotted to its expansion and the permanent shutting down of the plant. While its official statement called the recent development "unfortunate", market analysts seemed to have done their necessary service by reflecting positively on the limited impact the said closure will have on the earnings and stock value of the Vedanta empire.

Unsurprisingly, the cost of human lives lost in the incident and the continuing detriment to people and the environment caused by activities of Sterlite have not been measured or accounted for. While this may not be an isolated incident of state-led violence or poor environmental regulatory system, there certainly has been a shocking display of Vedanta's hubris in continuing to disregard legal frameworks even where the payoffs are limited.

Admittedly, the Indian government has welcomed Vedanta's presence through subsidiaries in several parts of the country even as those decisions have met with resistance everywhere. It is very unfortunate that a private resource giant must be welcome with minimal consideration for its abysmal track record in regulatory compliance elsewhere in the world.

The case of Zambian farmers

A telling instance has been in the case of Zambian farmers who won the right to sue Vedanta in the UK. The facts in Zambia are similar to that of Thoothukudi, where Vedant's Zambian subsidiary Konkola Copper Mines was alleged to have polluted the waterways of Chingola region through continuous discharges from Nchanga copper mines since 2005. The resulting pollution had caused several adverse health conditions for people in the region.

Although a minor victory limited to questions of jurisdiction, the array of arguments made in support of seeking right to sue Vedanta in English courts was impressive and robust. The claimants in the court of first instance had argued that the Zambian nationals bringing the claim were in the income group below national average, which made adequate legal representation prohibitively expensive.

Further, it was pointed that obtaining expert evidence and proving the causation would be difficult for the claimants, alongside a poor quality of legal services available in Zambia. The court, rightly staying away from the merits of the case, agreed with the arguments of the claimants and upheld their right to sue the corporate entity. A liberal reading was given to the duty of care and responsibility of parent company under the tort claims, as made in the original petition. Although the facts in India may vary from that of the Zambian instance, it does not prohibit us from wondering how courts, and laws, must respond to impunities enjoyed by the likes of Vedanta.

If we examine the past and present of environment-related conflicts, it seems that the idea of environmental justice is yet to gather steam in the country. For starters, our legal apparatus often seems unprepared to address the magnitude of environmental damage that is being inflicted every day under the garb of industrialisation, resource exploitation and development. The tumultuous history of litigation involving Sterlite and the many ways in which governments in the past have strived to assist Vedanta in circumventing regulatory norms by bending and twisting them periodically, are only a proverbial tip of the iceberg.

These are only symptomatic of deeper malice that is manifest in lax compliance and enforcement mechanism, meek pollution control, sustained environmental degradation, or generous grants of environmental clearances. India does not even possess a comprehensive toxic release inventory, which keeps track of emissions and pollution prevention activities of industries, as found in the Environmental Protection of Agency (EPA) of the US. We are missing a well-equipped, well-staffed monitoring bodies led by scientific expertise and legal force in environmental regulation.

The National Green Tribunal (NGT) [India] with its limited mandate can only go so far as putting a halt on polluting activities but can barely provide a counter to intentional executive actions that allow Vedanta and its ilk to continue to flourish. All aside, the very fact that the southern bench of the NGT has become defunct since the retirement of its sole member earlier this year, is a telling indicator of priorities in our environmental governance.

Even as the country has witnessed some of the extraordinary social justice movements that are shaping our idea of environmental justice and its pressing need in contemporary governance, it is barely adequate in the face of indifferent or, in most cases, antagonistic governments. While the poorest and the most marginalised in society continue to bear the brunt of frightful environmental quality resulting from unbridled industrial activities, they must now bear the added burden of facing the bullets for demanding justice.

This unsettling present demands an immediate action from all responsible actors. Primarily, India needs to develop a forceful green criminology jurisprudence which, among other measures, involves efficiently equipped regulatory agencies at regional levels, punitive damages against recalcitrant companies, civil liability for environmental damage, well-defined chain of command that ensures criminal prosecution and other related deterrent measures.

Unfortunately, even with a strong presence of EPA, environmental justice has not accomplished remarkable fete and the poor continue to suffer in the US. However, that does not stop us from addressing the gaping holes in our justice system. The first success of Zambian farmers is a lesson for us in engaging courts and undertaking strategic litigation to achieve environmental justice.

It is time to make the best use of discretions available with the courts, seek new forums for accessing justice, hold the governments accountable for their partisan attitude and compel industries to operate within the legal framework. People's movement and the collective strength to resist injustice are certainly inspiring. But a healthy democracy needs to do much more than merely let people fight their own battle and get shot in the process. It requires a tame government that does not forget to work within the remit of constitution. Thoothukudi should be an unforgettable lesson to that end.

Sakshi Aravind is reading for an MPhil in Environmental Policy at the University of Cambridge.