The victims of groundwater depletion and environmental pollution at Plachimada, Kerala, caused by the Hindustan Coca Cola Beverage Company, will have to wait longer. The Plachimada Coca-Cola Victims Relief and Compensation Claims Special Tribunal Bill 2011 is still with the Ministry of Home Affairs (MHA) while it should have been on its way for presidential assent to make it an Act.
Instead it was returned by the Ministry of Home Affairs to the Kerala government, the former asking the latter to clarify the constitutional validity of the Bill. This was done at the behest of Hindustan Coca Cola Beverages Private Limited, who through their counsels sent a note to the MHA. Kerala however has put their force behind the bill and has cleared that they do have the right to pass the bill.
In the meantime on December 17, villagers around the Coca Cola factory at Plachimada and from the state marched to the site and declared it to be taken over by the people as a matter of democratic right. The villagers, members of the Coca Cola Viruddha Samara Samithy and the Plachimada Solidarity Committee, were agitating against the delay in clearing the bill, that only needs presidential assent.
The Plachimada Coca-Cola Victims Relief and Compensation Claims Special Tribunal Bill 2011, once it becomes an Act would legitimizes the constitution of a special tribunal for securing of compensation of 216.25 crore for the victims from the soft drink giant.
Vilayodi Venugopal, convener of the Coca Cola Viruddha Samara Samithy addressed the activists and explained in details how at every stage of the struggle for justice the company tried to influence the decision of the authorities including the courts. Pointing out at the delays in the clearing of the bill, Venugopal said that it wasn't the company but the state and the centre that had let its own people down.
Venugopal reiterated the demands of the agitators at the meeting- the official closure of the factory and the compensation to victims, prosecution of the company for their human rights violations and crimes, empowering local authorities to take a call on how to use their natural resources and amending the Panchayati Raj Act to empower the local authorities.
Over 500 people gathered at the Coca Cola site. The police had to detain 22 people, including 5 women, to quell the agitators. The protesters were later released after five days. To register their protest there were others that went on a hunger strike on December 20 demanding a response from the state. Representatives of the state government visited the site and assured the villagers that they are backing the bill and have sent their replies to the MHA. The hunger strike was called off on December 22.
MoEF ponders over the bill
An Right To Information (RTI) response received by Delhi based non profit, Centre for Science and Environment reveals that the Bill was stuck earlier between ministries and later with the state. The Ministry of Home Affairs, which was coordinating the bill at the centre, was supposed to send the bill for feedback to concerned ministries and later forward it to the president.
The Bill was passed by the Kerala assembly in February and the bill was sent to the MHA on April 1, which later forwarded it to others like Ministry of Agriculture, Ministry of Environment and Forests, Ministry of Law and Justice, Ministry of Rural Development and Ministry of Water Resources in mid April. Subsequently comments were also invited from the Central Ground Water Board under the Ministry of Water Resources and the Ministry of Food Processing Industries.
The ministries were supposed to revert to the home affairs on the constitutional validity of the bill, conflict with an existing central law and deviation from the existing national or central policy. The documents received from the MHA reveal that the Ministry of Environment and Forests, despite receiving several reminders from the former, had not submitted their comments even as late as October 20. While the MoEF is still mulling over the bill, the MHA too failed to follow cabinet guidelines.
In an official memorandum issued by MHA to all the ministries it was mentioned that as per the cabinet guidelines for disposal of state legislative assemblies, the states should send in their observations with six weeks. It added that if the feedback was not received within the sex weeks deadline, the bill would be processed without waiting for further comments and if there were any inconsistencies at a later stage, the concerned ministry or department would be held responsible.
Within the six week period MHA received commets only from the Ministry of Rural development, Ministry of Law and Justice (department of justice) and Ministry of Agriculture. None of them had any objection to the bill.
The MHA instead of proceeding with the bill at the end of six weeks, kept sending reminders to ministries and in some cases waited for almost one and a half months, after the end of the six week period, before sending a reminder to Ministry of Environment and Forests and Ministry of Law and Justice (legislative department), Ministry of Water Resources and Ministry of Food Processing.
Ministry of Water Resources suggested grounds on which relief and compensation claims could be made by the Plachimada victims. It added expenditure incurred on deepening of wells, tube wells, replacement of existing pumps by high capacity pumps for lifting the water from deeper levels and deteriorating socio-economic condition owing to the loss of revenue.
On the one hand the MHA sat over the Bill instead of processing it, on the other it acted promptly on a legal opinion sent by Coca Cola India Pvt Ltd and sent the bill back to the state for explanations. Ministry of Home Affairs received a legal opinion on the constitutional validity of the Bill from senior advocate Fali S Nariman on behalf of the company. This was followed by another opinion by another senior advocate KK Venugopal.
“In the presidential assent issuing process, there is no provision for the central government to entertain the legal opinion of a private sector company on a bill passed by a state assembly,” wrote S Faizi, member of the Plachimada High Powered Committee which suggested that a tribunal be formed. He has raised his objections in an open letter to P Chidambaram, Minister of Home Affairs, challenging Coca Cola’s legal opinion on the matter.
What Coca Cola said
Faizi stated in his letter that the legal opinion filed by Coca Cola falsely claimed that there was no evidence of excessive extraction and pollution caused by the operation its plant in Plachimada. The damage has already been proven by several studies.
However, it is interesting to note here that though the ministry took action based on the legal opinion from the company, it refused to disclose the same in the RTI filed by CSE. They explained that they couldn't part with the information since they were not the originator of the documents. The ministry, had been secretive about other information as well. It denied information first and disclosed it only after an appeal was filed with the ministry.
C P Ramaraja Prema Prasad, law secretary of Kerala had informed earlier that the objections in the legal opinion were primarily on legislative competence of the state to set up a tribunal when National Green Tribunal was present. Coca Cola has objected to the Bill, earlier as well, saying that the compensation should be paid through National Green Tribunal.
"The issue cannot be debated in National Green Tribunal because the National Green Tribunal Act requires the petitions for compensations to be filed within a period of 5 years, with a grace period of 6 months. But the most critical damages to groundwater and toxic contamination caused by the Coca Cola company at Plachimada occurred between 2000 and 2004. It is more than five years and so the National Green Tribunal cannot be used to redress the problem," explained Faizi. Coca Cola India Pvt Ltd could not be contacted for comments.
23.02.2011- The Plachimada Coca-Cola Victims Relief and Compensation Claims Special Tribunal Bill 2011 is passed
1.04.2011- The Ministry of Home Affairs (MHA) receives the bill
13.04.2011 - MHA sends the bill to concerned ministries for comment with a deadline of six weeks
04.05.2011 - Ministry of Rural development replies with no objections and no comments
16.05.2011 - Ministry of Agriculture replies with no objections and no comments
18.05.2011 - Ministry of Law and Justice (department of Justice) replies with no objections and no comments
25.04.2011- Deadline to receive comments on the Bill
08.07.2011 – Overlooking cabinet guidelines, MHA choose not to go ahead with the processing of the bill and waiting for comments from remaining ministries
12.07.2011 - Ministry of Water Resources replies with a no obejction and few added suggestions
12.07.2011 – MHA sends the bill with the legal opinion of Coca Cola India Private Limited, received during July, to the state for explanations
29.07.2011 - Ministry of Food Processing Industries replied with no objections and no comments
20.10.2011- Ministry of Environment and Forests is yet to send its comments to the MHA.