'Anti Nationals' Protesting Against Vedanta, Says Salve; Vedanta A 'Rogue Company', Says Gonsalves [Court Room Exchange]

Mehal Jain

27 April 2021 2:21 PM GMT

  • Anti Nationals Protesting Against Vedanta, Says Salve; Vedanta A Rogue Company, Says Gonsalves [Court Room Exchange]

    The Supreme Court on Tuesday permitted Vedanta to operate its Oxygen production unit on standalone basis at Copper plant in Tuticorin, which had been closed for 3 years. The permission has been granted in view of acute Oxygen shortage being faced by many states in the country, amid the second-wave of Covid-19.At the outset, Senior Advocate CS Vaidyanathan, appearing for the state of Tamil...

    The Supreme Court on Tuesday permitted Vedanta to operate its Oxygen production unit on standalone basis at Copper plant in Tuticorin, which had been closed for 3 years. The permission has been granted in view of acute Oxygen shortage being faced by many states in the country, amid the second-wave of Covid-19.

    At the outset, Senior Advocate CS Vaidyanathan, appearing for the state of Tamil Nadu, drew the attention of the bench to a memo filed by the state government this morning.
    The memo, Mr Vaidyanathan indicated, refers to an April 23 meeting convened by the Tuticorin collector with all the stakeholders pursuant to the observations of the top court for the reopening of the oxygen plant. "The public sentiment was against the opening of the plant. However, taking into account the extraordinary situation which prevails in the nation today and the observations of this court, the issue was deliberated at the government level. All major political parties were consulted on this issue. A decision was arrived at that the oxygen plant alone may be allowed to be operated in national interest, that any action which can be taken to save life must be considered. The state was agreeable that the oxygen plant alone may be operated for a period of four months as a temporary arrangement", he quoted from the memo.
    "The oxygen plant, as a standalone unit, can function temporarily, starting in one week.The state needs to ensure that sufficient safeguards are in place. The thermal power plant and the copper smelting plant will not be functional. Vedanta shall not run its own power plant and it is TANGEDCO (the state electricity distributor) which shall supply them the electricity", he continued reading.
    Mr. Vaidyanathan also pointed out that the state government has constituted a monitoring committee to oversee the functioning of the plant, which is to comprise three local community leaders, NGO members or activists, in addition to the government officials. "The operational manpower and the expertise will, of course, be provided by Vedanta. They shall also bear all the costs of running the plant", advanced the senior counsel.
    "The media is full of reports saying that 1050 MT is their capacity (of production of liquid oxygen for medical use). But so far as we are concerned, 35 MT is all they can do. This is a one-time extraordinary measure. They will, of course, clear all their outstanding dues before commencing operation", continued Mr Vaidyanathan.
    Submitting that the present consumption of oxygen in the state of Tamil Nadu being 325 MT, he urged that priority shall be given to Tamil Nadu insofar as the oxygen manufactured by Vedanta is concerned. He assured that any surplus will be made available for utilisation by the other states. "The court may pass a direction in this behalf. And this is an interim arrangement which may be reviewed in August, when Your Lordships have the final hearing (of Vedanta's appeal against the Madras High Court's refusal to reopen its copper plant)", he said
    At this, Justice Chandrachud observed, "You say that the monitoring committee will comprise the District Collector and the Sub Collector of Tuticorin and the Director of the Tamil Nadu Pollution Control Board. This is fair enough. It will inspire public confidence. But the running of the plant must be by Vedanta. Let them have the responsibility. Let them be accountable to the court. This monitoring committee can function as an oversight committee"
    "Also, we must appreciate that this is a national crisis and each state can't view itself in a separate silo. Please don't stop the supplies which have been given to the other states. You say your requirement is 325 MT? If it increases in the future, modulation can be made. But we would expect the Tamil Nadu government to supply the excess surplus elsewhere", continued the judge.
    Justice Ravindra Bhat pointed out that there is an order of the Madras government also on this aspect of diversion. The judge also pointed to the central governments orders on the issue of allocation.
    Mr Vaidyanathan reiterated that while the surplus oxygen manufactured can be diverted towards interstate allocation, the priority must be given to the state of Tamil Nadu.
    "As of now, you have said that your requirements are being duly met. You may come back to us as and when they increase and your needs can be taken care of. But please ensure that the plant starts", said Justice Chandrachud.
    At this moment, SG Tushar Mehta appeared on the screen to make his submissions – "My request is very simple. We are not concerned, we are not interested in the dispute between Vedanta and the state government. When there is a facility available, why but must it go utilised? That is all I am concerned with"
    Justice L Nageswara Rao informed Mr Mehta that the state government has filed an affidavit before the court, communicating that Vedanta has been allowed to operate its oxygen plant.
    "Only medical oxygen is to be manufactured by Vedanta and it will be given to the central government to allocate. All the oxygen procured, whether imported or otherwise, is to come into the central pool for allocation. We have a mapping system – we grant oxygen to states as per their requirement. This is an evolving situation. Based on the availability as on date, we allot to A, B, C states. But this can dynamically change. If there is a big surge in one state, we allot more there. It has to be centrally monitored", argued Mr Mehta.
    "Mr Vaidyanathan, the state government's apprehension can be sorted out by the central government. The central government will resolve all your concerns in good faith, should any arise in the future. But if our intervention is needed, you may also move an application before us", assured Justice Chandrachud.
    Mr Vaidyanathan replied that in case of a problem, he would choose to first speak with SG Mehta and come to the Supreme Court only as the last resort. "It has to be done that way", remarked Justice Chandrachud. The SG also agreed that the priorities are now different at the political executive levels also.
    'No local, community environmental activists to be on the monitoring committee', argues Vedanta; Union of India seconds submission
    Next, Senior Advocate Harish Salve, for Vedanta, began his arguments –" We have said that we will be running only the oxygen plant, nothing more. We are not even using the power plant. We will get electricity from TANGEDCO and we will pay the charges. Our only genuine concern is with regard to the composition of the committee to supervise the plant – it should comprise only of the government officials; the presence of the community/local leaders tilts the balance. The people must have faith in the Collector and the other officers...We don't want to say that these people are anti-Sterlite. If there is a problem with the people, it will be solved. But there must be no tilting of balance as of today"
    "Instead of having these local community environmental activists as members, the monitoring committee could interact with them and seek their views as and when it deems necessary. That will ensure that the government is made accountable and there will be no ugly situation", ventured Justice Chandrachud.
    Mr Vaidyanathan responded to this suggestion, saying, "There was a lot of resistance to the opening of the plant. There was a great difficulty in persuading the people. We don't want any law and order situation. That is why it was suggested that the community be involved...but Your Lordships may order with regard to such consultation of and seeking of feedback from the community, so that they don't feel that their interests are not being taken care of"
    "Considering that the MoEF is Delhi-based, should we leave the oversight to Tamil Nadu in these times…?", asked Justice Chandrachud.
    "I agree with Mr. Salve. There is nothing like the 'environmental expert of Tamil Nadu'. And as regards the law and order problem, it has to be seen by the state government. This is a crisis situation. State government cannot say that it is dependent on some activists for maintaining law and order. If there is any difficulty, they may move Your LordshipsI But we urge that no outsiders are brought in (on the committee) under the garb of (unclear)", advanced SG Mehta.
    "It is us who are enforcing the Air Act, the Water Act, the Environmental Protection Act! There are so many violations! The central government should not go to the extent of saying that they support Vedanta! I am shocked by it!", intervened Mr Vaidyanathan.
    "Whether it is 301 (the Vedanta matter) or 302 (the suo motu cognizance by the Supreme Court of the Covid related issues), there must not be any political bickering in court! These are the times of a national crisis! We are trying to support the nation as a court! Lives have to be protected and not lost! This is an unprecedented international calamity! There has to be a spirit of dialogue!", expressed Justice Chandrachud.
    "When I say that I support Mr Salve, I am not saying that I support Vedanta. I am only supporting Mr Salve in as much as he says that there must be no activist in the committee. It is unfortunate that these petty things which should not be said are being said", clarified Mr Mehta.
    "Water supply, they will give us. The statutory permissions, the government will give. If there are any dues, we will pay. The plant is to be run by us. They will only supervise. It is our manpower. Although these are only semantics, they may create difficulty in the future. We are planning to ramp up the manufacturing of liquid oxygen to 200 MT per day, though they say we can only produce 35. But we are not here in dispute. We are all for the good of the nation", said Mr. Salve.
    As regards whether the oxygen is to be supplied to the state or the Centre, he remarked that Vedanta is "agnostic". "We are giving it to India", he said.
    "How soon can you start the operation of the plant", asked Justice Chandrachud.
    "We need access to 250 people. Hopefully, we will start no later than 10 days. But this is on a 'best endeavour' basis that I am saying this. In case we take 11 or 12 days, there must be no contempt. We will start with some production, the levels will obviously increase with time. There will be some trial and error", replied Mr Salve.
    'Don't trust Vedanta; let state government operate plant', pray pollution-victims
    At this juncture, Senior Advocate Colin Gonsalves, representing the families of those "severely affected" by the operation of Vedanta copper plant, sought the permission of the court to make a brief submission. "I support the production of oxygen for people. But there are families who have been affected for several years on account of Vedanta's plant; groundwater was destroyed; because of the toxic air pollutants, people got cancer. People are very agitated. There is a history of litigation before a coordinate bench of this court (a bench headed by Justice Rohinton Nariman which had on two occasions last year refused to allow the plant to reopen), where Vedanta has been termed a 'chronic defaulter'".
    Mr Salve objected to the argument proceeding "down these lines".
    "We are not hearing the appeal against the Madras High Court order refusing the reopening of the plant. We are only on the running of the oxygen plant. Whatever safeguards are to be there for the local community, we will include in the order", said Justice Chandrachud.
    "Authorities after authorities have taken assurances from Vedanta. They are not to be trusted. Please be very careful. They have tried to get inside their plant for the purposes of maintenance before the Supreme Court also. But this is for the first time that I am hearing that they need a personnel of 250! This is a full-scale entry! The coordinate bench had said that they would not be allow entry! The Madras High Court has formed a committee of seven government officers to take out the toxic material from within the plant. There is still some slag and toxic material in the plant which the state government is removing slowly. The central government, the state government and even the district authorities did not trust Vedanta. Even a small mishandling of the slag will cause tremendous pollution", pressed Mr Gonsalves.
    "I have a lot to say about these people also! I will show who the rogue is here!", countered Mr Salve.
    Mr. Vaidyanathan pointed out that this is not an adversarial litigation and there is no place for such recriminations here.
    However, Mr Gonsalves continued with his arguments- "There was an agitation against the plant. Women and children were part of it. The security personnel ended up killing six protesters. Sterlite has been adverse to people for a long long time"
    "But they have been allowed to run now by the state government. The political parties along the spectrum have been consulted on this aspect", pointed out Justice Chandrachud.
    Mr. Gonsalves contended that the political parties which oppose the resumption of functioning were excluded from this exercise.
    "Right now, they are running only the oxygen plant for the production of medical oxygen. The removal of the toxic materials etc has been carried out by the seven-member Court-constituted committee. There will be no interference there. What safeguards do you want to assuage your concerns?", asked Justice Chandrachud.
    Mr Gonsalves, in response, indicated the submission made by the Tamil Nadu Advocate General before the Madras High Court in its suo motu cognizance of Covid-related issues – "The Advocate General said that Vedanta has a limited capacity for generation of liquid oxygen. The oxygen so generated is not safe for medical use. The plant mostly has capacity for manufacture of copper, which involves production of oxygen for industrial use"
    "We believe that it would take 6 to 9 months for them to get their plant in order to commence production of oxygen for medical use! They are trying to bring 250 people within the plant because they want to do the maintenance which the Supreme Court did not allow them to do! They had said that the plant is in great disrepair! Those applications were rejected by the Supreme Court and they have not been put on record here! The plant has been on hold for three years! Let the state run it! Don't allow Vedanta anywhere near the plant! The expert committee will be telling Your Lordships that oxygen cannot viably be manufactured, that the manpower of 250 is not necessary, that we will disturb the toxic waste inside", pressed Mr Gonsalves.
    At this, Justice Chandrachud enquired from Mr. Vaidyanathan if the seven-member Court-constituted committee can assess if the oxygen plant can operate as a stand-alone unit and function separately for the manufacture of oxygen and whether it can produce medical level oxygen. And if yes, what safeguards need to be put into place.
    "A reasonable assessment has been made with assistance from technical experts that they can manufacture 35 MT immediately. As they say, they may even ramp up their production later. The monitoring committee referred to in the memo will examine how many people are needed", replied Mr Vaidyanathan.
    "It is the respondents who are the real rogues! We will show!", repeated Mr Salve. "Why the recrimination? There will be no finding there...", said Justice Chandrachud to him.
    "You have had your plant earlier also. What was the number of people needed earlier, just for running the oxygen plant?", asked Justice Bhat. Mr Salve replied that the full plant requires 3000 persons, while for the oxygen plant there is a requirement of 200 to 250 people.
    When Justice Bhatt asked if the 'slag issue' is in the copper plant, Mr Salve responded, "The oxygen plant is separate, it a standalone unit. Whether it is Reliance or Tata, they all produce industry oxygen. It can be purified. It needs to be concentrated more. The only thing is that then the quantity will come down. And anyway, the committee on the ground will see how we go about the slag"
    Justice Chandrachud echoed the concerns of the respondents that under the guise of running the oxygen plant, there must be no interference by Vedanta officers in any other part of the plant. "Nobody will go into the power plant or the copper plant. We will pay for the power and we will supply oxygen free of charge to the country", assured Mr Salve.
    Mr Gonsalves still persisted that as per his instructions, only 45 people are needed to run the oxygen plant. "Your instructions are irrelevant! You harbour animus! For you, everything is contentious!", contended Mr Salve.
    "Like Justice Bhat said that they (Vedanta) would have records of running the oxygen plant earlier. They will submit them to the committee to decide how many people are actually needed. We are not accepting Vedanta's affidavit. We understand your concern of them entering everywhere else. The committee will determine the complement of staff needed to run the standalone unit", said Justice Chandrachud.
    The judge continued to observe, "We understand that we have to get the community on our side, we need their confidence. We are alive to the concerns of the local community. But this is a time for all of us to join hands as a nation. This is a national crisis where people are dying for the want of oxygen", observed Justice Chandrachud.
    "They are not the community", interjected Mr. Salve.
    "We got your caveat", Justice Chandrachud reiterated.
    "These are certain vested, selected interest groups", SG Mehta backed Mr Salve's contention.
    "But that is how the problem has been highlighted in the court. We can't gloss over it. All three of you have said that the plant can be run. But if there is a different perspective, we must hear it, it will help us chisel our order", remarked Justice Chandrachud.
    "Please let the local community representatives not be deleted from the committee. Tamil Nadu has a long history of very experienced environmental activists", continued Mr. Gonsalves.
    "Please don't make fun of us", he added to Mr Salve as the latter expressed incredulity as regards this submission.
    "We will ask the Ministry of Environment and Forests to nominate an environment expert on that committee", suggested Justice Chandrachud.
    Mr Gonsalves said that any representative so nominated was not to be from any other state but from the same area so that they can inspire confidence in the local people. "Of course, it will be somebody from there only, somebody who can access the plant. In these times, it is not that the Ministry will bring in persons from Uttarakhand or Arunachal Pradesh. But there has to be some balance", said Justice Chandrachud.
    "We will cooperate. We are saying that oxygen must be generated. We are not anti-national. We are very good people. We only want the people experts to not be excluded", said Mr Gonsalves.
    "They are anti-nationals!", exclaimed Mr Salve.
    Addressing Mr Salve, Justice Chandrachud cited a phrase in Marathi – "Let's relax", translated the judge.
    When the bench reconvened after a brief conference, Mr. Vaidyanathan also pressed, "The local community is necessary. We don't want a law and order situation. Also till 2 May, we don't have any spare police officials. We don't want any dissension. All the police administration is engaged in the counting (on account of the assembly elections in the state)"
    "We have come up with a balanced solution. We will request the MoEF or the NEERI (National Environmental Engineering Research Institute) to recommend five environmental experts from Tamil Nadu. Mr Gonsalves' clients can then choose 2 from them. This way there will be confidence in these people. But these will be genuine people picked up from the panel suggested by NEERI, if not the MOEF. The court-appointed committee shall also engage with the community continuously as regards their concerns", said Justice Chandrachud. "Obliged", replied Mr Vaidyanathan.
    "There is also an issue which can have a cascading effect if it is not understood properly. Mr Vaidyanathan said that the surplus oxygen generated is to be distributed among the states. This is not the system. The system is that the oxygen is procured in the central pool, which the Centre allocates. There are very few oxygen generating states in the country and if every state starts (unclear)", argued Mr Mehta.
    "I only said that priority may be given to the Tamil Nadu state and whatever is surplus is available to the central pool", said Mr Vaidyanathan.
    "Even priority may not be possible", replied Mr Mehta.
    "Your point is well taken. We are not making any observations on that aspect right now", noted Justice Chandrachud.
    Mr Gonsalves continued to press that Vedanta, even in its own affidavit, has stated that it requires 45 persons to run the oxygen plant and that the number may be limited to that. "These people are continuing to… You have said it a dozen times", said an exasperated Mr Salve.
    Another advocate appearing for some other respondents also chipped in, "NEERI is Sterlite's consultant. They have made conflicting reports in the past. The Tamil Nadu government also has experts, can they be recommended?"
    "Please see their attitude! NEERI is consulted by every industry in India!", retorted Mr Salve.
    Justice Chandrachud put a quietus to the issue by saying that the court shall require the MoEF to recommend the panel of experts.
    'Permission only to reopen oxygen plant in view of pandemic; no equities as regards the copper plant', SC clarifies.
    Finally, Mr Salve advanced, by way of a "housekeeping request", that Vedanta's application not be disposed off, considering that he is not at the moment pressing the second prayer in the application for the reopening of the entire copper plant
    "Please don't give them any liberty! They have applied for this several times and it has been rejected!", urged Mr Vaidyanathan.
    "I am not pressing the second prayer today! I am only asking Your Lordships to keep back this application! Or I make a fresh application! I can't be prejudiced like this!", said Mr Salve.
    "But they say your applications have been rejected in the past", pointed out Justice Chandrachud. "I disagree! I can show that to Your Lordships!", replied Mr Salve. "We will only deal with your interim application on the issue of the pandemic", said Justice Chandrachud.
    The bench that proceeded to dictate the order, allowing the first prayer in the application regarding the reopening of the oxygen plant as a standalone unit for the manufacture of oxygen. The bench noted that the prayer is being granted in view of the present times, where manufacture of oxygen is an intrinsic part of dealing with the Covid pandemic.
    The bench recorded in its order that the seven-member committee shall continue to be responsible for the scientific removal of slag within the plant and that the prayer to reopen the copper plant has not been accepted.
    "It is only in the present situation that this order is being passed, with a view to ramp up the oxygen manufacture in the country. The applicant would claim no equities as regards the whole plant on the basis of this order", the bench clarified.
    Even after the passing of the order, an advocate prayed that Tamil Nadu be given priority in the allocation of the oxygen generated at the Vedanta plant. "The nation stands together. Today, Tamil Nadu's requirements are taken care of. If there is a change in the requirements, we are here, we will resolve it. We are here to support the entire nation", assured Justice Chandrachud.
    "We will work with you. As soon as electricity connection can be given to us, we can start the production", said Mr Salve to the state government.
    The bench asked Mr Vaidyanathan to ensure that all the utilities are made available to Vedanta. "Whatever is required, we will give", replied Mr Vaidyanathan.
    Additional Advocate General of Tamil Nadu, Mr Balaji Srinivasan, prayed that the MoEF nominate experts who are residents of nearby areas so that they do not find it difficult to convene at a short notice.
    Mr Gonsalves also pressed that a safety audit of the plant be carried out.
    "The committee will do all that is needed. There is no need for an audit of the copper plant", said Mr Salve. "We are on the audit of the oxygen plant only. The copper plant is out-of-bounds!", stressed Mr Gonsalves.

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