Calcutta High Court’s Order Paves Way For Asbestos Free West Bengal & India

Calcutta High Court’s Order Paves Way For Asbestos Free West Bengal & India

Supreme Court & other High Courts need to inquire about carcinogenic asbestos laden buildings in their premises

The Division Bench of Calcutta High Court has passed an order which can set the process of making West Bengal free of asbestos based products. The order seeks removal of carcinogenic-asbestos that has been used for roofing in the Court’s buildings. This order underlines the serious unprecedented environmental and occupational health crisis with regard to the unnoticed epidemic of asbestos related diseases in West Bengal in particular and in the country in general.

In Writ Petition (Civil). No. 14729 (W) of 2016, the Bench of Acting Chief Justice Nishita Mhatre and Justice Tapabrata Chakraborty passed the verdict observing, “The High Court main building is undergoing repairs with the assistance of the Public Works Department (PWD) of the Government of West Bengal and other Authorities. When the entire renovation is undertaken, it is expected that the High Court and the PWD or, any other body entrusted with the renovation will ensure that the asbestos-sheets, which have been used for roofing, would be replaced by any other materials which are non-carcinogenic.”

Prior to this when current West Bengal Chief minister was the Union Railway Minister, the ministry had ordered removal of asbestos roofs from all railway buildings. It is noteworthy that the ministry has invited offers for “Procurement of Non-Asbestos “K” Type Composition Brake Blocks”. The offer has been issued by Director, Railway Stores (W) or and on behalf of President of India. The removal of asbestos roofs from railway platforms is underway.

It is noteworthy that in a reply dated July 5, 2012 Deputy Secretary, Labour Department, Government of West Bengal enclosed the reply dated May 30, 2012 of R C Dutta, Director/Chief Inspector of Factories, Government of West Bengal wherein he provides the status of asbestos factories and its adverse impact in the State.  In the submission it is reported that there are 4 units in the district of Paschim Medinipur (1) UAL Bengal (Prop. Utakal Asbestos) Vill. Tungadhowa, Guptamani-Kultikiri Road (2) Ramco Industries Ltd., Vill. Dewanmaro Ayma, P.O. Hariatara, (3) Neelachal Natural Resources Pvt Ltd., P.O. Manickpara and (4) Visaka Industries Vill., Chang sole, P.O. Saiyadpur. It reveals that “Six persons of UAL Bengal (Prop. Utakal Asbestos) having some respiratory ailments, diagnosed as suffering from Pulmonary Koch’s were treated and subsequently fit to join work in the non-dust area.” It discloses that in the Everest Industries Ltd., 1, Taratala Road, P.O. Garden Reach in the District of Kolkata “One person having some abnormality in X-Ray Chest, diagnosed as fibrotic lung disease (?) were made unfit and alternate placement facilities were provided.”  It has reported in the submission that the operation of Unit Sarbamangala Industries, 34 B, B.T. Road, Kolkata-700002 is closed for last two years. Its management has been asked to maintain the health records of the workers. It reported that Mahendra Tubes Ltd. NH-31, Birpara Gairkata Road, Vill. P.O. Sakuajhara, Dist. Jalpaiguri is in irregular operation and the workers are not fixed and permanent. Its management has been asked to maintain the health records of the workers. With reference to J.D Jones Ltd. Howrah, it has been reported that at present it is having no process/work involved in asbestos handing. Its management has been asked to maintain the health records of the workers. This reply submitted that “No case of compensation has been reported in the above units though alternate facility has been recommended for few workers in some units on medical ground”. This reply seems to constitute a blatant case of adoption of Ostrich policy by the government. It is refusing to admit to emergence of asbestos related diseases in these factory units of the State.

The reply and the submission do not reveal the status of the procurement of asbestos based products by the State Government and the residents of the State. It failed to report whether the West Bengal has the environmental and occupational health infrastructure in place to diagnose asbestos related diseases.

Notably, government agencies like Directorate General, Factory Advice Service and Labour Institutes (DGFASLI) took note of Prevalence of Asbestosis and Related Disorders in a Asbestos Fiber Processing Unit in West Bengal as early as in 1996. Reference: Prevalence of Asbestosis and Related Disorders in a Asbestos Fiber Processing Unit in West Bengal, http://www.dgfasli.nic.in/newsletter/jan_march_96.pdf

In view of the incontrovertible adverse health effects asbestos based plants and products should be phased out to protect the lives of present and future generations. Asbestos related diseases are also incurable despite this environmental clearances are still being given by the central environment ministry but health being a state subject, Bengal government can act to safeguard the life of present and future generations by stopping it.

Given the fact that health is a state subject, Government of West Bengal faces a logical compulsion to stop manufacturing, procurement and use of all forms of asbestos including white asbestos to protect the residents of West Bengal from the exposure of fibers of white chrysotile asbestos.

It has been estimated that one person dies from mesothelioma for every 170 tons of asbestos consumed. WHO estimates we have107, 000 deaths worldwide per year from occupational exposure to asbestos. If non occupational exposure is added it reaches a figure of about 120,000 deaths. Average world consumption/year 30-60 years ago was -- looks like3/2 of what it is now (2 million metric tons/year). Give India its share of that based on its share of global consumption. At 300,000 tons in 2013, that's about 18,000 deaths (15% of 120,000).  Asbestos diseases have a very long incubation period. So if you are exposed today to an asbestos fibre, you are likely to get the disease in next 10-35 years. Asbestos is like a time bomb to the lungs and Indians will suffer the most. If it is banned today that does not mean people will not suffer. Because of past usage people will continue to suffer from these diseases.

In such a backdrop, Calcutta High Court has recorded that “there is sufficient study material indicating that asbestos sheets used for roofing could cause cancer” and “various documents, issued by the World Health Organization (WHO), and other materials obtained from the Internet, that the exposure to asbestos including chrysotile causes lung cancer, mesothelioma and asbestosis.” It was contended by the petitioner that “the High Court should not continue to use these materials for roofing, especially after legislation in different parts of the world has been enacted on recognizing the potential health risk of asbestos to the citizens at large. Even in India several Acts recognized the fact that asbestos is a health-hazard.”

Notably, there is hardly any building in West Bengal which is asbestos free. It is high time State Government initiated efforts to decontaminate asbestos laden public and private buildings.

Prior to Calcutta High Court’s verdict, Kerala State Human Rights Commission recommended ban on use of asbestos roofs for schools and hospitals in its order dated n January 31, 2009. National Human Rights Commission (NHRC) has passed an order in Case No: 693/30/97-98 recommending that the asbestos sheets roofing should be replaced with roofing made up of some other material that would not be harmful.

Globally, asbestos industry is on trial. Countries after countries are passing verdicts against it. They are banning future use of the cancer causing mineral fiber of asbestos. Government of India is publicly revealing that it does not favour new asbestos plants in the country any more. There is a compelling logic emerging for pre-existing asbestos based plants to shift to non-asbestos based building materials. It is not surprising that "The Government of India is considering the ban on use of chrysotile asbestos in India to protect the workers and the general population against primary and secondary exposure to Chrysotile form of Asbestos." It has noted that "Asbestosis is yet another occupational disease of the Lungs which is on an increase under similar circumstances warranting concerted efforts of all stake holders to evolve strategies to curb this menace". A concept paper by Union Ministry of Labour revealed this at the two-day 5th India-EU Joint Seminar on “Occupational Safety and Health” on 19th and 20th September, 2011. (Reference: http://www.labour.nic.in/lc/Background%20note.pdf)

The Annual Report of NHRC 2003-2004 refers to a Report entitled “Asbestos – Health and Environment – an in-depth Study “submitted by the Institute of Public Health Engineers, India. The study underlines that safe and controlled use of asbestos is not possible.

Taking lessons from the industrial disaster of Bhopal, asbestos industry should be made to pay heed to the way asbestos companies have gone bankrupt in the Western countries. They should be persuaded to join hands and create a compensation fund for victims. Dow Chemicals Company which refuses to own the liability for Bhopal disaster caused by Union Carbide Corporation (UCC) in India has owned the UCC’s asbestos related liabilities and announced a compensation fund of 2.2 billion dollars for the victims. In Europe, tycoons and ministers are facing criminal charges and imprisonment for their act of knowing subjecting unsuspecting people to killer fibers of asbestos. The future is no different for Indian culprits.

While India has technically banned mining of asbestos due deleterious impact on health, it is quite ironical that Union Government allows import of white chrysotile asbestos from countries like Russia, Brazil, Zimbabwe, Kazakhstan and others. Government should not allow itself to be misled by asbestos producers like Russia in this regard now that Canada has rightly stopped mining of white chrysotile asbestos almost like India due its “deleterious” impact on health.

Notably, the verdict of five judges of Japan’s Supreme Court of February 17, 2015 has upheld a ruling that found asbestos used at a plant of Kubota Corporation caused fatal mesothelioma in a man who lived near the plant and ordered the company to pay ¥31.9 million in damages to his relatives. The petitioners were relatives of Kojiro Yamauchi, who died at age 80 after working for two decades about 200 meters from the Kubota plant in Amagasaki, Hyogo Prefecture. His relatives and those of Ayako Yasui, who died at age 85 having lived about 1 km from the plant, sought damages from both Kubota and the government. In October, 2014 the Supreme Court ruled that the government was responsible for failing to protect workers from exposure at asbestos factories in Sennan, Osaka Prefecture.

Reference: http://www.japantimes.co.jp/news/2015/02/19/national/crime-legal/top-court-upholds-kubotas-liability-in-asbestos-death-case/#.VO3inSw8RkQ

It is noteworthy that Japan has banned asbestos of all kinds including white chrysotile asbestos. Nepal has become the first country in South Asia which going in the direction of banning asbestos. In January 1995, while passing the judgment for the asbestos case file by the Consumer Education & Research Centre (CERC) (case details: http://indiankanoon.org/doc/1657323/),  Hon’ble Supreme Court of India directed all asbestos factories to keep the health records of their workers for 40 years and/or 15 years after their retirement.

The second significant direction was that the central government and the state governments have to mend their rules and regulation as per the resolution of International Labour Organisation (ILO). The ILO says eliminate asbestos of all kinds for elimination of asbestos related-diseases. Controlled use is not possible. It has not been possible for all the countries which have banned it and this is impossible in India too.

Notably, Indian Navy officials rightly objected to presence of asbestos in aircraft carrier Admiral Gorshkov which was inducted into the Indian Navy as INS Vikramaditya after asbestos decontamination.

Union of India’s Budget 2011-12 had made reference to asbestos related diseases by including it under the Rashtriya Swasthya Bima Yojana to cover ‘unorganized sector workers in hazardous mining and associated industries like asbestos etc”.

Governments should pay heed to the fact that there are fibre substitutes that have been evaluated by WHO are listed in the Summary Consensus Report of WHO Workshop on Mechanisms of Fibre Carcinogenesis and Assessment of Chrysotile Asbestos Substitutes.

Reference: http://www.who.int/ipcs/publications/new_issues/summary_report.pdf

It is a universal fact that sooner or later, the asbestos industry will go bankrupt because they will have to pay huge amount of money in compensation. For every injury in the law there is a remedy. The present and the future generation will make sure they get remedy. The rate of consumption of growth which they are enjoying today does not mean it will continue. In Western countries, the rate picked at one time and today it is zero. This is the peak of Asbestos industry in India and now, the downfall will start.

The industry must be persuaded to phase out in two phases. In the first phase the goal is to eliminate use of chrysotile asbestos and the number of exposed workers and consumers in the country. In the second phase, the goal is to create incentives for the use of safer materials, ensure, create a registry of asbestos laden buildings and victims of asbestos-related diseases and ensure decontamination of the former and compensation for the latter. There is an immediate need to conduct an audit of the current status of the victims of asbestos related diseases from the government hospital records in the country and make it mandatory for medical colleges to provide training for doctors so that they can diagnose diseases caused by occupational, non-occupational and environmental exposures to killer fibers and substances.

Notably, Union Environment Ministry’s Vision Statement reads: “Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out”.

While an Advisory Committee of Union Ministry of Labour has been set up to implement Supreme Court order issued 15 years ago on January 27, 1995 and repeated on January 23, 2012. Although several years have passed but the Advisory Committee headed by Joint Secretary, Union Ministry of Labour is yet to submit its report to incorporate specific directions of the Court with regard to fresh ILO’s Resolution of June 14, 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos.

The year 2011 is remembered in Bihar for a successful villagers’ struggle against a asbestos plant proposed by Kolkata based company Balmukund Cement & Roofing Ltd in Chainpur-Bishunpur, Marwan Block, Muzaffarpur district, Bihar that led to the winding up of the plant as per a communication from the Chairman, Bihar State Human Rights Commission.

Following bitter resistance against the proposal of West Bengal based Utkal Asbestos Limited (UAL) at Chaksultan Ramppur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat of in Goraul block in Vaishali, Bihar, Bihar State Pollution Control Board (BSPCB) cancelled the No Objection Certificate given to the UAL company. It had approval for 2.5 lakh ton per annum capacity. The peoples struggle led to stoppage of proposed asbestos based plant of 1.25 lak tons per annum (TPA) capacity in Pandaul, Sagarpur, Hati tehsil in Madhubani, Bihar. The proposal of 2.5 lakh TPA capacity plant by Hyderabad Industries Ltd in Kumar Bagh, Bettiah, West Champaran, Bihar has also been stopped. The company has constructed a boundary wall amidst rich agricultural field but faces court cases from villagers.

It is sad that a killer fiber like asbestos which is banned in some 60 countries is being used in West Bengal and other states to manufacture asbestos cement sheets disregarding the fatal health impact for present and future generations. Such plants and products should be stopped to save residents from incurable lung cancer like diseases.

Asbestos death toll has surpassed traffic fatalities in Australia. In US, every year 10, 000 people are dying because of asbestos related disease. There is an epidemic of asbestos diseases in Europe. In India, a silent Bhopal disaster is happening every year. The rate of consumption of asbestos in India is rising at an alarming rate due to budgetary support. Nearly all of India's asbestos is mixed with cement to form roofing sheets. Bolstered by asbestos import tariffs that have been reduced from 78% in the mid-1990s to 15% by 2004, the country's asbestos-cement industry is increasing by roughly 10% every year.

Some typical asbestos-based materials include sound insulation infill, thermal insulation lagging, tape, rope, felts, blankets, mattresses, asbestos boards, gaskets and washers, drive belts/ conveyor belts, roofing sheets and slates, drain and flue pipes, rainwater goods, fascia boards, bath panels, ceiling tiles, toilet seats, cisterns, bitumen damp proof course, lining to walls, lab bench tops, extraction hoods and fume cupboards, brakes and clutches, cooling tower elements and others.

The health consequences are already apparent, but the scale of the problem is not clear because there is no documentation of disease caused by environmental and occupational factors. “The Government of India has a very poor, almost non-existent, system to record death and disease”, explains Arthur Frank from Drexel University, Philadelphia , PA , USA who is a regular visitor to India. Besides, cancer is not a notifiable disease. Prof. Frank cited a hospital in Mumbai which sees a dozen cases of mesothelioma every year. Studies have shown high rates of asbestosis among workers in the industry, including in those whose exposure to the material has spanned less than 5 years. There has been no real assessment of [asbestos-related disease] to the point that you can get accurate figures.

The verdict even by the World Trade Organization (WTO)’s Appellate Body  validated the rights of Member States to prohibit the import and use of goods which contain carcinogenic substances such as chrysotile asbestos (white asbestos) is noteworthy. On March 12, 2001 the WTO's Appellate Body issued its ruling in the case of Canada vs. the European Communities Measures Affecting Asbestos and Asbestos-Containing Products. It noted that safe and controlled use of white chrysotile asbestos is impossible.

India is the largest importer of asbestos, according to the UN Commodity Trade Statistics Database. Most of it goes into making corrugated roofing sheets as building material.

While on a visit to New Delhi, Dr Alec Farquhar, as the Managing Director, Occupational Health Clinics for Ontario Workers, Canada said, “We now have around 500 asbestos cancer cases every year in Ontario from a population of 13 million. If you (India) continue on your current path, you will multiply our death count by 100 times. That would be 50, 000 Indian workers dying every year from asbestos. In Ontario, we learned that safe use of asbestos is impossible. I urge you from the bottom of my heart, please do not make the same mistake as we made in Canada. Stop using asbestos and use a safe alternative.” It is clear that lack of documentation and lack of environmental and occupational health infrastructure does not mean lack of victims of asbestos related diseases.

Although it has been estimated by the Canadian jurist that approximately 50, 000 people die every year in India due to asbestos related cancer but so far Government of India and state governments has failed to take a pro-people’s health position and a scientific stand on the import of chrysotile asbestos whose mining is technically banned in India. It is a matter of fact that health is a state subject.

In such a context, there is a logical compulsion to take note of the letter and the spirit of the Calcutta High Court’s order of July 21, 2017. This verdict implies that all public and private buildings need to be made asbestos free. It cannot be Court’s direction that Court’s employees including judges need to be saved from exposure to carcinogenic asbestos fibers only in the Court’s premises and not elsewhere. Given the fact that not a single building in West Bengal is asbestos free, this order is applicable to all asbestos based products and asbestos laden buildings of the state. Supreme Court and other High Courts too should set up a committee to inquire whether or not their Court premises are free of asbestos and ensure that it is replaced non-asbestos based building materials.

In order to take the next logical step, West Bengal Government should prepare a register of asbestos laden buildings, products and asbestos based factories. It should prepare a register of all asbestos victims in the State. It needs to announce the compensation package for present and future victims of asbestos diseases as it has done in the case of Silicosis. It should make the asbestos companies liable under civil and criminal law for knowingly exposing citizens and consumers of asbestos products.

Even early industry-funded studies showed a causal relationship between asbestos exposure and cancer. Had this been made known to the public it could have prevented countless deaths but the asbestos industry made the conscious decision to protect their profits instead and choose to keep this information hidden from the public. India’s asbestos industry is following the same path.    As a consequence, although millions of Indian lives are being lost and millions are being exposed to the killer fibers of white chrysotile asbestos, no government agency or company is being held liable due to political patronage.

Meanwhile, the case of Chennai based Nibhi asbestos company against State of Bihar [Writ Petition (Civil) 15399/2016] remains listed for order before Court No. 17 of Justice Shivaji Pandey in Patna High Court since August 7. It was listed for order on August 22 as well. The case is repeatedly getting passed over for some reason. The company in question has been found guilty of failure to comply with the provision of Section 21, Section 22 and Section 31 A under Section 37 of the Air (Prevention & Control of Pollution) Act, 1981. The State Pollution Control Board has ordered removal of this polluting factory which causes emission detrimental to the physical comfort and health of public at large.

 Dr Gopal Krishna  is a public policy and law researcher and Editor of www.toxicswatch.org

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]