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The past two days have seen the killing of 13 protesters and hundreds injured, as citizens gathered to protest the copper smelter plant of Sterlite Industries (India) Ltd. in the town of Thoothukudi in Tamil Nadu, India. Sterlite is a subsidiary company of Vedanta Resources, the multinational mining conglomerate infamous for violation of environmental norms as has been summarized here.

While the casualties occurred over the past two days after the police opened fire, the protests against the Sterlite plant have been continuing for two decades after the plant was set up in 1998. Recently, in March 2018, tens of thousands of protesters gathered demanding the plant be shut down, owing to arising contamination of local water sources, leading to shops shutting in solidarity, and diaspora protests outside the offices of Vedanta in London. The violence by the police ensued on the 100th day of the protests. The Chief Minister of Tamil Nadu has defended the police firing, tweeting “[w]hen someone hits you, you naturally tend to defend yourselves”.

As Thoothukudi reels from the tragedy, combined with the consequences of the environmental pollution from the plant, the state government on Wednesday ordered the suspension of all internet services in Thoothukudi and two adjoining districts for five days. On Thursday morning, the Tamil Nadu Pollution Control Board finally ordered the closure of the plant, by cutting off its supply of electricity.

 

Sterlite, a History of Pollution

The following timeline of events is to detail the number of judicial fora and agencies involved in the proceedings involving the Sterlite plant, before the ill-fated protests of the past week:

The Sterlite plant in Thoothukudi was initiated in 1994 and became functional in 1997, after which there were multiple incidents of locals suffering from pollution allegedly arising from the plant. While deciding on a petition filed by the National Trust for Clean Environment, the Madras High Court ordered for the closure of the plant based on the findings of a report by the National Environmental Engineering Research Institute (NEERI) which found among other things that the plant was responsible for contamination of groundwater with pollutants such as arsenic, lead, copper and aluminium and may have been responsible for gas leaks which caused illness to local citizens. The Madras High Court, a week later decided that the plant could reopen pending another report by NEERI and the subsequent report in February, 1999 absolved Sterlite of environmental liability.

Sterlite continued to seek consent to operate and licenses for buildings that it had begun to construct without having permission, and were surprisingly given those permissions by the Tamil Nadu Pollution Control Board (in charge of delivering the permits). In the meantime, it continued to operate well past its sanctioned capacity exceeding anticipated pollution. In 2010, again, the Madras High Court ordered closure of the plant for violation of environmental regulations and the Supreme Court stayed that order, allowing the plant to resume operations. The operations allowed in the interim period led to eight reported hazardous incidents including fatalities, as compiled by the Newsminute. However, while the Supreme Court allowed the plant to operate, it imposed a fine of 1 billion INR, under the polluter pays principle, to restore the environment, which would have been a small sunk cost for a company like Vedanta. The National Green Tribunal heard the case in 2013, and allowed the plant to operate in its decision.

Following the protests on May 22, 2018 the Madras High Court on May 23 passed an interim stay order against Sterlite’s expansion of the plant to include a second unit, and the order unequivocally emphasized that the company must seek public consultation within four months regarding such expansion.

 

Public Participation

Public participation has become a key tenet of modern Indian environmentalism. Primarily, the currently applicable Environmental Impact Assessment Notification of 2006 requires projects requiring environmental clearance to necessarily undergo public consultation before the clearance is granted, and the objections of local affected persons are taken into account while granting the clearance. A core issue in the Sterlite dispute has been whether public consultation was necessary for Sterlite to expand its plant in 2014, after the enactment of the EIA Notification. While the UPA government in 2014 clarified that they would have to undergo public consultation, the new NDA government in power ten days later interpreted the law differently, and decided that Sterlite did not have to undergo public consultation (this interpretation was later held to be illegal by the National Green Tribunal in 2016).

Secondly, the enactment of the Right to Information Act, 2005, has granted citizens the right to access information from public authorities who are required to maintain those records to be made available to the public in a time-bound manner, introducing a necessary layer of documentary accountability on environmental agencies.

Thirdly, in 2010, India established the National Green Tribunal (NGT) as a forum to decide on environmental disputes with expert judges, and accessible rules of procedure and evidence. It was a welcome step, permitting citizens with limited means to access environmental justice. However, there has been recent scaling down of the NGT’s strength and powers due to lack of appointment of judges, and as of writing this piece, the Central, Western and Eastern Benches of the NGT have posted on the website that they are unable to hear cases as scheduled.

These laws and structures when allowed to function to their full potential do have the power to overturn an undemocratic colonial legacy that i using arms against citizens.

 

Protests and Repercussions

While it is a given that the State exercises control and maintains compliance with its laws through the use of an extensive penal code and its enforcement arm: the police force, most of India’s rules of criminal procedure, police practices and penal provisions were created by a colonial imperial government which had a direct stake in controlling the local citizenry in the interest of safeguarding their colonial rule. This is especially relevant given the colonial government’s financial and administrative interest over natural resources like water, minerals, forests and land which belonged the community. Today, these interests are neoliberal and so the protection afforded to these interests by police excesses are globalised.

In the “first comprehensive worldwide assessment of violent repression of grassroots environmental protests” in 2016, researchers at Wesleyan University found that “violence against peaceful environmental protesters occurred most frequently when communities that included marginalized groups protested natural resource extraction in their community.” Take the instance of the police action during the Dakota Access pipeline protest in the United States of America, where dozens were injured after the police used water cannons on the protestors, largely made up of Native Americans.

The use of criminal provisions and enforcement agencies in curbing public participation is a legacy of our colonial laws, a legacy which has raised its head repeatedly in independent India, from the Chipko movement in the 1970s, to police firing killing 13 adivasi or tribal citizens protesting against land acquisition for a Tata Steel project in Kalinganagar in 2006 and other similar instances. There are multiple instances where the police are used to quell protesting citizens, sometimes with fatal consequences, and environmental protests feature often among instances of casualty. An example of the Indian police’s colonial legacy is seen in the enthusiastic deployment of wooden-sticks for maintenance of order through ‘lathi-charge’, the history of which has been detailed here.

 

Democratisation of Dissent

We don’t seek to frame this only as an issue of police excess. It is also contextualising the violence by the police, within the network of beneficiaries of that violence, the foremost being corporations who benefit from quelling of public protests against their capital interests. There is currently an effort to characterise the current state of affairs as solely being the doing of the government currently in power, but the twenty-five year history of the Sterlite plant painfully illustrates that no major political party in the region has clean hands when it comes to complicity. The doctrine of public trust, a core principle of Indian environmental law entrusts the State with the country’s natural resources on behalf of present and future generations, and is therefore responsible for ensuring its protection.

When protesters seeking environmental justice are killed, this relationship of trust is breached and realigned in favour of private instead of public interest. The fact that citizens must resort to protesting on the streets, in numbers that the government deems poses a threat to its police forces in order to seek environmental injustice is indicative of the decay of our judicial and legislative safeguards against environmental pollution. Unfortunately, the withdrawal and limited success of the judiciary and the failure of participatory processes written into law in this case left matters of democracy in the hands of the police administration, the only intermediary of the State directly interacting with the public on the ground. As discussed, the police forces, due to the circumstances in and motivations for which they were created, are not the paragon of democratisation. The police in

Thoothukudi reacted in the only way they know how to. Until the Indian police can be democratised, other public institutions must come forward to mediate public will.

About Mrinalini Shinde