EPW Commentary June 18, 2005 Corporate Violence, Legal Nuances and Political Ecology ----------------------------------------------------------------------------------- Cola War in Plachimada -------------------------------------
The verdict by the Kerala High Court against the Perumatty panchayat shows the judicial apathy towards a struggle symbolic of the effort to assert control over natural resources that the people rightfully see as theirs. A critical analysis of the expert committee report that has influenced the verdict to an extent. K Ravi Raman ================== http://www.epw.org.in/showArticles.php?root=2005&leaf=06&filename=8761&filetype=html The April 7, 2005 verdict of the division bench of the Kerala High Court virtually entitling Hindustan Coca-Cola Beverages to resume operations in its cola factory in Plachimada has sparked off protests and agitations. The verdict which favours a multinational giant in its fight against an indigenous community that struggles for its very livelihood is inexplicable. The carefully considered decisions, the meticulous attention to detail and the evenly poised arguments that epitomise a competent judiciary seem to be sadly missing, leaving the scales of justice wildly askew. Coca-Cola had set up its plant in Plachimada, a small hamlet in the district of Palakkad, Kerala in March 2000, within a few years of its re-entry in India in 1993 in the wake of liberalisation. The multinational was accused of creating severe water shortage, of polluting its groundwater and soil, and also of distributing toxic waste as fertiliser to farmers in the area. Responding to the mounting pressure from the local community – particularly the adivasis and the dalits – the Perumatty panchayat refused to renew Coca-Cola's licence for further production; after an initial tussle with the panchayat, the state government, too, was forced to impose a temporary ban on the drawing of groundwater owing to the severe drought conditions that prevailed in the region; the factory has remained closed since March 9, 2004. On December 16, 2003, in a landmark verdict, the single bench of the Kerala High Court upheld the position of the panchayat and directed the company to seek alternative sources of water for its bottling plant in Plachimada. The single bench maintained that groundwater belonged to the people and that the government did not possess the right to allow a private party to extract it in such huge quantities, it being "a property held by it in trust". It also ruled that the company should be allowed to use only that quantity of groundwater equal to the amount normally used for irrigating crops in a 34-acre plot, the actual area occupied by the company. Coca-Cola appealed against the verdict of the single bench, in response to which an expert committee led by the Centre for Water Resources Development and Management (CWRDM), Kozhikode was constituted on the directive of the high court to conduct a scientific enquiry into the 'allegation' that the functioning of the cola factory had caused water scarcity in neighbouring areas. The financial conclusions of the committee support Coca-Cola's arguments. Now, the division bench of the Kerala High Court (hereafter KHC) has ruled in favour of the cola company, sweeping aside protests from the local community and the panchayat in addition to the decision of the single bench of the high court, in the process. Expert Committee Report The KHC has drawn on the expert committee report1 to hold that the wells in Plachimada are drying up in summer due to poor rainfall and notwithstanding stoppage of extraction of water by the company after March 2004, and that keeping the plant idle, on the assumption that the company is the cause of the shortage of water, is not justifiable. The court also observes that the drying up of ordinary wells is not a phenomenon specific to Plachimada, and that by natural seepage during the rainy season, water travels down to the lower reaches, recharging groundwater stores in the process. Referring again to the expert committee report, the KHC maintains that out of the annual available groundwater resources of 66.7 million cubic metres (MCM) in the Chittur block to which Plachimada belongs, the committed requirement for domestic and irrigation purposes up to 2025 AD would be 62.5 MCM of water, leaving 4.2 MCM for other purposes such as factory use. The annual requirement of the company, at the average rate of 5 lakh litres per day, works out to 0.1825 MCM, which would be less than 5 per cent of the available balance of 4.2 MCM. Within the Plachimada watershed, the company would require only 4.97 per cent of the average annual available groundwater resources of 3.67 MCM; the KHC thus recommends the extraction of 5 lakh litres per day by the company and suggests that it also undertakes supply of drinking water to the residents before June 30 this year. The KHC rules that "the panchayat has no ownership about such private water sources, in effect denying the proprietary rights of the occupier". It avers that if such a restriction is to apply to a legal person – in this case Coca-Cola – it may have to apply to a natural person as well. The court holds that the Perumatty grama panchayat was not justified in rejecting the company's application for renewal of licence in the absence of authentic scientific assessment. It had no legal authority to cancel the licence for functioning of its unit for any of the reasons it had cited. The panchayat has been directed to consider grant of licence if the company satisfied the other statutory conditions such as issues of licence under the Factories Act and of pollution certificates from the State Pollution Control Board. The Critique It is quite clear that the HC has relied on the report of the expert committee for its judgment. However, the constitution of the expert committee itself was undemocratic. The 11 member committee did not have a single representative of the panchayat, not to speak of representation from the local community. The terms of reference too were quite inadequate. For instance, the expert committee's suggestion that the company be granted permission to extract water, was based on the assumption that water would be recharged according to the rainfall received. This holds true with respect to dug wells but it may not be equally applicable to bore-wells, which tap water from the deep aquifer where it has accumulated over centuries; the deep aquifer is in no way replenished by the annual rainfall received in a particular area or in a particular year. Most importantly, the Indian government's water policy in general treats water in the deep aquifer – from where Coca-Cola now extracts water – as precious reserves to be saved for use in times of crisis; it is certainly not meant for commercial purposes. Moreover, a rephrasing of the question to address the presence of water scarcity within 50 metres of the company or in its immediate vicinity, instead of seeking shortage of water in 'neighbouring areas' would have brought the entire enquiry into focus. Moreover, the CWRDM could have at least conducted the Aquifer Performance Test to assess the optimum water yield in the aquifer concerned; it should also have assessed the destructive interference in the nearby wells due to pumping by the factory. Further, it could also have conducted radio-isotope tests to ascertain the locally specific rate of natural recharge of rainfall. Instead of thus assessing the environmental impact of large-scale water extraction, the CWRDM has studied the availability of water in Chittur block on a macro scale and has extended the same exercise on a micro level to Plachimada; it has then come up with estimates regarding the availability of water and suggested that the company be allowed to draw a certain percentage of the available balance after meeting the committed requirement. It must be mentioned here that the inadequacies and drawbacks of this study had already been pointed out by the Centre for Science and Environment (CSE), New Delhi, the state government as well as the panchayat; it is in complete negation of these dissenting views that the KHC has arrived at its verdict. Based on a study done by the CSE, the panchayat had pointed out that the expert committee had overestimated the groundwater availability in the area, given that the natural recharge of rainfall was barely adequate to meet the domestic and agricultural needs and, secondly, that it had underreported the daily consumption of water by the multinational giant. It remains to be seen whether the findings of the expert committee can indeed be corroborated. The expert committee's estimate of an annual recharge of groundwater to the tune of 20 per cent in Chittur and 11 per cent in Plachimada has been accepted by the KHC verbatim. But it has escaped the court's notice that this estimate does not hold true with respect to Chittur block which, with its black granite soil, has an annual recharge potential of only 5-8 per cent; in such granite soils, it could be still lower at 2-4 per cent as assessed by the Central Groundwater Board (CGB) itself.2 Hence the expert committee estimation of 20 per cent natural recharge of groundwater in Chittur block is not possible. Going by the CGB guidelines, the panchayat has argued that the Chittur with its black granite soil has a natural recharge potential which works out to only 16.62 to 33.2 MCM as against 66.7 MCM had the recharge potential been 20 per cent.3 It would not even suffice for the committed requirement of domestic and irrigation purposes (62.5 MCM till 2025 AD); the water available for Coca-Cola would in effect be nil. No further proof is needed for the fact that Plachimada exists in a state of drought, the government already having declared it so. The availability of groundwater is also worked out based on the annual average rainfall in the region over the previous decade, which stands at 1,413 mm for the region. But the committee has glossed over the fact that there has been a consistent decline in rainfall over the past five years, and that if worked out, the average annual rainfall would be only 1,172 mm and the average groundwater availability, even at 20 per cent rate of infiltration would be far lesser than the committee's estimate. The report then intrinsically counters its own findings and logic. For instance, the expert committee viewed that 5 per cent of the water remaining after meeting the committed requirement of domestic and irrigation purposes could be used for other purposes such as for factory consumption. This holds good with respect to the 'macroanalysis' of Chittur block which, the study states, has an available balance of 4.2 MCM for industrial and other uses. The 0.1825 MCM annual requirement of Coca-Cola is a little less than this 5 per cent of the balance amount of 4.2. But when we turn to the 'microanalysis' of Plachimada, the permitted 5 lakh litres a day (0.1825 MCM annually) forms 73 per cent of the balance of 0.25 MCM. The court has permitted the extraction of 73 per cent of the balance groundwater and that in an area which both the HC and the expert committee agree has had a decline in rainfall as well as an aggravation of the water scarcity due to unregulated withdrawal of water. And if the 5 per cent ceiling as applicable to Chittur does hold any sanctity – it has not been substantiated by any authority – it would permit an extraction of only 0.0125 MCM per annum of groundwater in Plachimada which would amount to just 34,246 litres per day. The many inconsistencies and the deviation from a reasonable norm that are manifest in the expert committee report have clearly not been impressed upon the KHC which has, without demur, accepted that the "final report of the expert committee is comprehensive". The state government had confirmed a depletion of groundwater in the area surrounding the factory and had appealed to the KHC that Coca-Cola should not be allowed to extract water further. The government after its initial objection to the cancellation of the licence, reported to the state legislative assembly that the ground water department had subjected 16 wells around the Coca-Cola plant to study from March 2002 to August 2003 and had found that the water level had gone down by extents ranging from 0.22 cm to 1.37 cm in nine wells. Moreover, three wells had even gone dry during this period. This was attributed to pumping by the company, coupled with poor rainfall and this justifies the government's earlier decision to ban the extraction of groundwater by the company from March 2004, a ban that still continues due to the prevalence of drought. However, the KHC now faithfully defends Coca-Cola's 'right' to resume production arguing in all sincerity that the wells in Plachimada are dry not due to overextraction by the factory but due to the reduced rainfall and the consequent drought. The incoherence of this argument is obvious. If the wells are dry owing to drought and not due to overextraction, the court seems to say, Coca-Cola may draw as much water as is necessary for the functioning of its plant! The lesser said about the hapless people of Plachimada the better. Their innocent assertion that they had never known water scarcity prior to the arrival of Coca-Cola goes unheeded. To quote Milamma, one of the most committed of the women protesters, "we have been living here for the past 25 years. We never went out to bring water. But today we walk a distance more than two kilometres to fetch water".4 The question of the pollution of groundwater which is in fact, far more serious an issue, has not been addressed at all. But in this respect the panchayat are also to be blamed, for, as the court has rightly pointed out "the notice was issued only on the ground of excessive extraction of groundwater and the decision to cancel the licence was taken on the basis of that ground". The presence of toxic contents in the solid waste discharged by the company was reported by 'Face the Facts' on BBC Radio on July 25, 2003, based on a study done by David Santillo, University of Exeter. Following the BBC report, several governmental and quasi-governmental organisations such as the Kerala State Pollution Control Board (KPCB) and the Central Pollution Control Board have substantiated these facts but after a great deal of contestation. As the sludge supplied by the company to the farmers as fertilisers contained dangerous levels of cadmium and lead, it directed the company to set up hazardous waste management measures.5 Meanwhile, studies conducted by the CSE revealed that the soft drinks produced by Coca-Cola and PepsiCo contained toxic pesticide residues; a Joint Parliamentary Committee led by Sharad Pawar was constituted to verify the findings of the CSE which in fact were found to be true.6 The Supreme Court Monitoring Committee which visited Plachimada on the request of the JPC also reported that the drinking water source adjacent to the factory was contaminated due to the "illegal dumping of wastes"; this includes a public well which is used by not less than 40 families. Subsequently, the KPCB too confirmed that the company possessed no "satisfactory facility for the disposal of hazardous waste generated" in the factory and that the improper disposal of hazardous wastes from the factory had affected the "drinking water sources of a large number of public residing near the premises"; Coca-Cola was thus refused authorisation by the KPCB, which in effect was a closure notice.7 Further, the state groundwater department also revealed that hardness and the presence of calcium and chlorides were higher than the permissible limits in certain wells, which might have been due to the untreated effluents let out by the company. Accusations regarding the Total Dissolved Solids in the nearby wells due to the discharge of effluents and the possible health hazards that they pose are aspects which Coca-Cola had deliberately concealed from the public; those who pleaded for the panchayat too have failed to bring it to the court's notice. With the result that the KHC, in its current ruling, cites a letter addressed to the KPCB pointing out that "every possibility of any waste product contamination has been plugged up" and "may be the Pollution Control Board has no objection in permitting operation". Before making such suggestions, the KHC should have at least consulted with the Pollution Control Board. Given the level of technology and the nature of the production process, how would it be possible to avoid any waste product contamination without stopping the very production of cola? How is it possible for the KPCB to permit a resumption of operations? A mere alteration in the manner of disposal of sludge, which the company might come up with to garner the requisite authorisation which was temporarily suspended by the KPCB as per the direction from the Supreme Court, would not leave water unpolluted, an aspect, which neither the single bench nor the division bench has dwelt upon. The KHC has not paid attention to the other issues of public concern such as the presence of toxic contents in the drink. Knowing fully well that cola production involves the use of identical ingredients and processes at least within India, on what basis does the court 'protest' that samples from Plachimada had not been tested? Would it really have given different results? What is more samples from Plachimada have been tested by the health department of the state government and have been found to contain hazardous pesticides. This has been clearly cited in the report of the JPC8 and it is unfortunate that the court has refused to countenance this issue on the ground that the panchayat is "not competent to go into the quality of the beverages produced and it is for other appropriate authorities to look into such allegations". Just as in the case of pollution of groundwater, the court has managed to put up a tenuous argument to preempt discussion on the issue of the quality of the beverage.9 Conclusion The entire angle from which the expert committee has approached the problem seems questionable; rather than addressing the question with a view to a restorative justice, the authorities have resorted to hair-splitting legal logic. To draw a parallel between individual extraction and large-scale extraction of groundwater is nothing short of absurd. When an individual draws water from his well, it does not hurt his neighbour at all. But when the company draws water the neighbourhood runs dry as has been happening in Plachimada. The HC ruling to the contrary seems inexplicable. One is also at a loss to explain the eagerness of the judiciary to support a multinational instead of its own people. The face off is between an indigenous community that struggles for its livelihood and corporate capital that seeks to accumulate further. More importantly, the constitutional rights conferred by the sections 19, 20, 21, and 22 on natural persons certainly cannot be considered applicable in the case of legal person that the multinational represents as has already been pointed out by legal luminaries.10 Further, when an agricultural-community struggles for water in an area owing to the continuous extraction of water by a corporate giant, one fails to understand the KHC rejection of the single bench observation that priority should be given to the agriculture sector. The cross-territorial implications of the current verdict, unless countered, would be far-reaching. The HC maintains that having granted permission for the company to operate in the first place, it is unfair to refuse to "quench its thirst". It is true that the authorities, which first granted permission, did so without realising the true consequences of their decision. But does it justify the continuation of operations by the company even after it has became clear that its consequences are far-reaching and detrimental to the interests of the local community as a whole? How can the high court allow large-scale extraction of water in a place that already suffers from natural water shortage? What legal ethics could support the continued functioning of the factory when it pollutes drinking water and wrecks the community livelihood? The only answer to this problem is the total stopping of water extraction and pollution by corporate capital – and to provide compensation to the local people for the losses incurred – precious water should thus be conserved for the day-to-day uses of the local population. What we see instead is the sad spectacle of a judiciary that is blinded by the glare of corporate anguish. The judiciary, perhaps in its haste to interpret the law at the expense of justice itself, has failed to realise that the local people have been seeking justice without violence and that the movement they have initiated spills over from the realm of human ecology to those of political economy, indigenity and cultural identity.11 However, once legal channels are exhausted as a means of resetting the scales of justice, the local community or the resistance movement in Plachimada, like any other community/movement in the world, would give up state structures of negotiation. This is what has happened in the case of land struggle by the adivasis in Kerala – after nearly three decades of peaceful resistance, the adivasis still remain trapped in alien legalities.12 The Cola Quit Plachimada Campaign, an amalgam of organisations acting in defence of the local community which includes the People's Struggle Committee, the Plachimada Solidarity Committee, the panchayat, the Solidarity, the large number of NGOs and the National Alliance of People's Movement13 have declared that they would continue their struggle both within the court and out on the streets. They have also been exerting pressure on the state government for legislative action and to go for appeal against the multinational. The panchayat which has declared Perumatty a 'Cola-free area' besides promoting natural/health alternatives such as the tender coconut, has already appealed to the Supreme Court; in arguing its case the panchayat must seek an elucidation of the true extent of its powers in controlling its resources as conferred by the 73rd constitutional amendment which seeks to strengthen local self- government including the grama sabha (village council).14 Given the history of the Supreme Court verdict in October 2000 which cleared the way for the construction of the Sardar Sarovar Dam which, one can hardly expect any miracles. A spreading of the movement to ignite kindred movements such as the one against PepsiCo in neighbouring Puthusseri panchayat would help widen its local base, while a greater degree of cooperation with other anti-cola struggles such as the one in Sivaganga (Tamil Nadu), Mehdiganj (Uttar Pradesh) and Kala Dera (Rajasthan) would help articulate new strategies and to democratise the movement further. This would clear the way for a new understanding of the problem and might even give the campaign a new sense of direction: a subaltern resistance largely led by the subalterns themselves but without forsaking its current secular complexion. Perhaps if the adivasis (and the dalits) were to speak for themselves – whether in court or in the public sphere – the impact would be far more decisive. Legal niceties and judicial procedures would then be rendered redundant in the face of harsh realities in these times of neo-liberal reforms and cultural globalisation. Email: [EMAIL PROTECTED] Notes [The author is grateful to C K Brahmaputhran and Sabeena Panicker for helpful comments; the author has also benefited from discussions with Veloor Swaminathan (convenor, Action Council), Vilayodi Venugopalan (chairman, Adivasi Protection Council), R Ajayan (state convenor of the Plachimada Solidarity Committee), Suresh George and C R Neelakandan.] 1 Investigations on the Extraction of Groundwater by Hindustan Coca-Cola Beverages (P) – Final Report, the investigation team constituted vide Order WA/2125/2003 by the High Court of Kerala, February 11, 2005. 2 Central Groundwater Board, Groundwater Resources of Kerala, CGWB, Thiruvananthapuram, 2003. 3 Writ Petition Number 12,600 of 2004, KHC, Ernakulam. 4 Interview dated January 14, 2005, Plachimada. 5 Letter dated August 7, 2003 from KPCB to the Hindustan Coca-Cola Beverages, Palakkad. 6 See the report of Joint Parliamentary Committee (JPC) on Pesticide Residues in and Safety Standards for Soft Drinks, Fruit Juice and Other Beverages, February 2004. 7 Letter dated March 23, 2004; From the member secretary, KPCB to the HCCBL. 8 Cited in JPC Report, op cit, p 14 and Annexure XII. 9 It is worth noting even as cola production commenced in the late 19th century Coca-Cola was alleged to contain poisonous substances against which several suits have been filed in US courts, see Hutt, Peter Barton, 'The Image and Politics of Coca-Cola: From the Early Years to the Present', 2001, www.leda.law.harvard.edu/leda/data/398/AlOthman.html; Frederic Clairmont and John Cavanagh, 'Merchants of Drink: Transnational Control of World Beverages', Third World Network, Malaysia, 1988. 10 See Justice K P Radhakrishna Menon, 'The Plachimada Verdict and the Constitution', Mathrubhumi Daily, April 19, 2005. 11 For a discussion on such issues see Arturo Escobar, 'After Nature: Steps to an Antiessentialist Political Ecology', Current Anthropology, 40 (1), February 1999:1-30. 12 see K Ravi Raman, 'Muthanga: A Spark of Hope', Social Analysis: The International Journal of Social and Cultural Practice, Issue 1,Vol 48, 2004 and in Kapferer, B, (ed) State, Sovereignty, War, Berghahn Books, Oxford, 2004:107-24; C R Bijoy and K Ravi Raman, 'Muthanga: The Real Story: Adivasi Movement to Recover Land', EPW, May 17, 2003,1975-82. 13 The NAPM has launched its indefinite stir in the state capital on May 17 under the leadership of Medha Patkar. 14 This would also help one to review the strengths and weaknesses of the decentralised governance in a state like Kerala where it is claimed to be a success. __ Anivar Aravind
