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A Mighty Super Power called Coca Cola: Duly Protected by Manmohan Govt Earlier and Modi Sarkar Now
Sankara Narayanan | 08 Jan 2015

A bottling unit set up by Hindustan Coca Cola Beverages Private Limited (HCBPL) in Plachimada locality in the drought-prone Palakkad district of Kerala State in 2000 had caused massive depletion of ground water and extensive pollution from its sludge.

High levels of hardness and chlorides were found in the water samples collected near the plant in Feb 2002. Studies conducted from 2002 to 2006 too showed a marked increase in the level of hardness and chlorides as the plant's operations progressed. The pollution intensity increased with increase in proximity to the plant and vice versa. The pollution and consequent diseases in the area were so bad that the District Medical Officer of Palakkad had to ask the local people in April 2003 not to use water in the wells near the Cola plant for drinking purpose.

Huge levels of cadmium in the sludge generated by the plant (which it had criminally spread all over the village by deceiving the unsuspecting farmers as good manure) was found by studies. The Kerala State Pollution Control Board (KSPCB) investigation in 2003 found the level of the lethal Cadmium in the sludge at 201.8 mg/kg which was more than four times the permissible level of 50 mg/kg.

A subsequent study conducted by the Central Pollution Control Board in November 2003 found the level at the deeply worrying level of 333.8 mg/kg! The groundwater of the village too was contaminated by the leached Cadmium as KSPCB's and other studies have shown. A comparative study conducted by the Kerala Agricultural University has found high levels of Cadmium in cow milk, chicken meat, egg, fodder etc at Plachimada.

The data collected by the Groundwater Department glaringly tells of the critical water depletion caused by the Cola company. Analysis of the groundwater data has shown that there was a 10.6-12 mts (below ground level) drop in the phreatic aquifer (groundwater) system around the plant area in December 2002 and this has further dropped to 11.4-13 meters in May 2003 in spite of the better rainfall in that year's summer, in contrast to the rest of the Chitoor Block. After the plant was closed in March 2004, the water level slowly and gradually began to rise as was found in May 2004 and May 2006.

It was found that the company was using water in this water scarce area that was to be used for domestic and agricultural purposes, causing the water crisis in the area. The Central Groundwater Board has determined the maximum groundwater recharge in the Plachimada watershed as 8 per cent and taking this maximum rate, the total available groundwater there was found as 3.105 million cubic meters. And considering the total water requirement of the area (domestic, agricultural and livestock), Plachimada has an annual water deficit of 0.1168 mcm, which means that the 0.1825 mcm that the company was drawing was the water meant for domestic and agricultural/livestock purposes. The water tragedy played out at Plachimada was a result of this.

The life of the village community was endangered which forced them to mount a peaceful and protracted agitation leading to the intervention of the Hazardous Waste Monitoring Committee of the Supreme Court of India. Eventually the company was closed down in 2004 but the company has not provided compensation for the massive damage caused to the local community and the ecology.

Considering the gravity of the issue the Kerala Government established a High Power Committee in 2009 to study and measure the scale of damage caused by the company operations and to recommend ways for redressal. The Plachimada High Power Committee in its report submitted in 2010 made an estimate of the minimum financial loss of damages caused by the company at Rs. 216.26 crore and determined that the company has breached nine different laws in force in the State. The High Power Committee (HPC) also recommended the formation of a special tribunal as provided by the Indian Constitution, through the due process of law.

Accepting the findings and the recommendations of the HPC, the Kerala govt introduced in the State Legislative Assembly the "Plachimada Coca Cola Victims Compensations Claims Tribunal Bill 2011" and it was unanimously passed on 24-02-2011. The Bill seeks to establish a special tribunal where claims of the Coca Cola victims will be heard and addressed with due consideration of the arguments of the company. The Bill was thereafter sent by the Governor of Kerala to the President of India, through the Ministry of Home Affairs of the Government of India, for the assent of the President, in order to secure the legal strength of the law. It is now approaching four years.

The then Home Ministry of the UPA Government had not even passed on the Bill to the President of India in all the three years of its rule. All the ministries of the Government of India related to the subject matter of the Bill had provided categorical approval for issuing Presidential assent to the Bill. These ministries are the Ministries of Agricultural, Rural Development, Water Resources, Food Processing and Law. The only ministry that has not provided categorical approval but only vaguely commented on the Bill was the Ministry of Environment and Forest who had repeated the argument of the company that the new law was repugnant to the Green Tribunal Act 2010. This is obviously an invalid argument as it fails to note the time bar of five years for raising claims set by the Green Tribunal Act. This Act cannot address the Plachimada issue that was already ten years old when the Bill was enacted in 2011.

From 2011, at various points of time, the Kerala govt wrote several letters expressing concern about the inordinate delay in the issuance of the Presidential assent and calling for early action. Several members of the previous Parliament have met with the President and appealed to him to issue the assent without further delay. The issue was raised in both houses of the Parliament and in the Kerala Legislature but to no avail. All this while the affected community has been peacefully agitating at Plachimada, at Trivandrum in front of the Government Secretariat, in front of the official residence of the Chief Minister and in front of the residence of A.K. Antony, the then Defence Minister  

The Central Government have however not been paying heed due to the influence by the company's lobbying. The company is apparently using all means at its command to block the final enactment of the Bill. They are also incessantly supported by the diplomatic missions of the US Government in India. For instance, even long before the passage of the Bill, the US Consular General in Chennai visited the then minster of local self-Government to personally influence him not to proceed with any case against the company as demanded by the laws of the land. The victims are poor people and helpless while the govt is subverting the Constitutional procedures at the instance of the powerful company.

In its latest communication dated 1-12-2014, the Home Ministry (HM) of NDA has advised the State govt to withdraw the the Plachimada Coca Cola Victims Compensations Claims Tribunal Bill 2011 as the provisions of the Bill are in direct conflict with the NGT Act and the State Legislature does not possess the necessary legislative competence to enact a law for the constitution of a Tribunal to adjudicate the matters arising out of the violations of the laws enacted by the Parliament under Article 253 of the Constitution, subject matter of which does not fall under the matters specified in List II or List III of the Seventh Schedule.

The HM advises the State govt- in line with the MNC's 'legal opinion'- to approach the NGT. This betrays the sad fact that the HM officials have not even read the National Green Tribunal Act, 2010. Section 15.3 of the Act requires the petitions for compensation to be filed within a period of 5 years, with a grace period of 6 months. The most critical damages to groundwater and toxic contamination caused by the company at Plachimada occurred during 2000-2004, way before the time bar set by the Act and therefore this Act cannot be used to redress the tragedy at Plachimada. This is the reason why the Bill was passed by the Assembly. And it may be recalled that the NGT became operational only in May 2011. The HM officials and their legal advisors should be held accountable for deliberately misinforming a state government.

There is absolutely no conflict between the NGT Act and the Bill, primarily due to the difference in the temporal coverage, in fact by filling the time gap in regard to the Plachimada locale the Bill provides an excellent complement to the NGT Act. The HM repeating the challenge of the  company that the State Assembly has no legislative competence to enact legislation to redress the damages in the areas of health, agriculture, labour (loss), animal husbandry, groundwater etc, all listed in the State List (II under the Seventh Schedule) is posing a serious question on Centre- State relations.

The Bill does not by any means comes in conflict with the Centre's powers as provided by Articles 253 and 246; it flows from the State's Constitutional responsibility to act upon the violation of the Article 21 and has got nothing to do with any international declaration.

It is surprising that the while the HM refers to the responses of the Department of Legal Affairs and the Solicitor General that favour the company, it tactically ignores the categorical support to the Bill officially expressed by the relevant ministries long time ago. And these ministries are: the Ministry of Agriculture, Ministry of Rural Development, Ministry of Water Resources, Ministry of Food Processing Industries and the Department of Justice under the Ministry of Law. That is obviously a tactics adopted to favour the powerful American company, especially at a time when the US president is set to visit India.

The HM is subverting the Constitutional process by refusing to pass on the Bill, with the government's comments, to who it was originally addressed- the President, even after four years and in spite of seeking and obtaining numerous clarifications. The State government has to squarely reject the Centre's latest letter and moblise political forces with the democratic society to have the assent obtained. If the assent is further delayed by the Centre, the State Assembly may pass a resolution on the subject and commence the enforcement of the law, as there is no case of repugnance involved.

The State Government shall not further delay initiating criminal proceedings against the recalcitrant company for which show cause notice was given by the KSPCB in 2007, under the Hazardous Wastes (Management and Handling) Rules. There is no justification for the State govt's delay in registering case against the company under the SC and ST (Prevention of Atrocities) Act as recommended by the Plachimada HPC.

The writer expresses his gratitude to Dr S. Faizi [Environmentalist, Negotiator in the Rio de Janeiro Summit process (UN Conference on Environment and Development) and Expert member, Plachimada High Power Committee] for providing all the inputs. Without his help, it would not have been possible to write this article.