Misinterpretation of Indian Asbestos Decision
Revised Feb 22, 2011
Since the decision was handed down by the Indian Supreme Court in the case of Kalyaneshwari vs Union of India & Ors (January 21, 2011), global asbestos lobbyists have lost no time in exploiting the verdict for their own purposes.1 On Brazilian2 and Canadian3 websites run by asbestos trade associations and in press releases by vested interests,4 the ruling is being promoted as judicial support for the industry lobby's pro-asbestos propaganda. On February 17, 2011 Canada's asbestos mouthpiece – the Chrysotile Institute – called it a “Historic Decision.” A fortnight earlier the industry consortium hoping to cash in on Quebec asbestos exports to Asia, was in buoyant mood, dishing up morsels from the judgment as a 3-course meal. Attempting to seize the moral high ground, entrepreneur Balijit Chadha, whose company has been exporting Canadian asbestos for 15 years, used the judgment as proof of the non-scientific approach of ban asbestos campaigners who, he claimed, try “to moralize or shame people on the basis of incomplete science and half-truths.”
An altogether different take on the meaning of this judgment is contained in a piece by a French-Indian legal analyst which appeared last week on the website of ANDEVA, an umbrella group representing regional asbestos victims' groups in France. The piece, headlined The Indian Supreme Court Asks the Government to Effectively Prevent the Dangers of Asbestos for Workers,5 highlighted comments by the judges which acknowledged Parliamentary discussions on banning asbestos and indicated that an asbestos ban is the remit of legislative authorities. The ruling referenced the submission of a Parliamentary Bill by Shri Vijay Jawaharlal Danda, MP entitled: THE WHITE ASBESTOS (BAN ON USE AND IMPORT) BILL, 2009, the text of which stated:
“It is quite surprising that our country is openly importing huge quantity of a product, which causes cancer. This is despite the fact that safer and almost cheap alternatives to asbestos are available in the county. Instead of importing a hazardous material, it will be better if we spend money in research and development and use environment friendly product. In view of the above, there is an urgent need for a total ban on the import and use of white asbestos and promote the use of alternative material.”
The reason why this case was brought in 2004 remains obscure and little is known about Kalyaneshwari, the non-governmental organization, which was the petitioner. The fact that the Court accepted the need for the Government to act on the asbestos hazard even when it had concluded that the litigant was not an unbiased petitioner motivated solely by the public interest is highly significant. The language in section 14 of the decision acknowledges the need for Indian legislation to be updated in line with recommendations or conventions issued by the ILO and admits that such a review is 15 years overdue:
“Admittedly 15 years has expired since the issuance of the directions by this Court. The ILO also made certain specific directions vide its resolution of 2006 adopted in the 95th session of the International Labour Conference, It introduced a ban on all mining manufacture, recycling and use of all forms of asbestos. As already noticed, serious doubts have been raised as to whether 'controlled use' can be effectively implemented even with regard to secondary exposure. These are circumstances which fully require the concerned quarters/authorities in the Government of India as well as the State Governments to examine/review the matter in accordance with law, objectively, to achieve the greater health care of the poor strata of the country who are directly or indirectly engaged in mining or manufacturing activities of asbestos and/or allied products.”
Given the asbestos lobby's flexible approach to the truth, it is not surprising to see the propagandists attempt to spin this decision as a major victory; having lost control of the asbestos agenda, they are floundering about trying to build castles out of straw. In view of the global escalation of ban asbestos momentum, their desperation is understandable. In India, the tide is turning against the industry. Mounting unrest over commercial plans to impose asbestos processing factories on local communities in Bihar State, mobilization of various sectors of civil society and upcoming events planned in several Indian cities will increase the visibility and impact of the ban asbestos campaign. The attempts by the asbestos lobby to "spin" the Supreme Court's decision will not deter or deflect the coalition of groups campaigning for India, the world's leading importer of asbestos, to impose a comprehensive ban on asbestos use.
February 19, 2011
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1 The English version of this judgment can be read at:
http://judis.nic.in/supremecourt/imgs.aspx
http://judis.nic.in/supremecourt/helddis3.aspx
If the above links are not working the judgment can also be found in the file: http://andeva.fr/IMG/pdf/IndiaSC_judgement.pdf
2 Suprema Corte da índia regula uso de amianto no país. January 28, 2011.
[English translation: The Supreme Court of India Regulates the use of Asbestos in the Country.]
http://www.crisotilabrasil.org.br/site/novidades/noticiaIntegra.php?id=176
Suprema Corte da India nao proibe uso de amianto. January 27, 2011
[English translation: Supreme Court of India does not Forbid Asbestos Use.]
http://www.conjur.com.br/2011-jan-27/suprema-corte-india-regula-uso-amianto-pais-proibi-lo
3 Historic Decision from India's Supreme Court. February 17, 2011.
http://www.chrysotile.com/data/inde_janvier2011_en.pdf
4Press Release by Guy Versailles, of Balcorp Ltd., a company exporting asbestos to Asia.
Asbestos Supreme Court of India refuses to ban asbestos, calls for adequate regulation and chastises NGO's link to competitive products. February 1, 2011
http://www.newswire.ca/en/releases/archive/February2011/01/c6953.html
5 La Cour Suprême de l'Inde demande au gouvernement de prévenir efficacement les dangers de l'amiante pour les travailleurs. February 7, 2011.
http://andeva.fr/?Arret-de-la-cour-supreme-de-l-Inde
