Not quite in order

14/05/1997

Not quite in order Bichhri: where the earth bleeds
People's protests had forced the closure of Bichhri's polluting industries. The court's intervention, which was late in coming, has not helped much, Bichhri remains the same

IN BICHHRI, a nondescript village near Udaipur in Rajasthan, tile wells contain, instead of clear water, a brownish cocktail of iron, gypsum, H-acid and other pollutants - 'Coca-Cola', as local farmers call it. The highly acidic contaminant corrodes the rock walls of the wells and seeps into the surrounding areas. Bichhri's woes began in 1988 with the mergence of the Silver Chemicals factory, set up by an industrialist from Mumbai to manufacture H-acid, a naphthalene-based dye intermediate. A few months later, villagers found their well-water turning brownish-red due to seepage of effluents from the unit. The H-acid sludge had been dumped on bare ground and chemicals from the sludge had seeped into groundwater (Down To Earth, Vol 4, No 23).

Bichhri turned out to be a unique case, where public protests forced the district administration to order the closure of the factory on January 3, 1989, for 60 days - well before the Supreme Court (SC) came into the picture. But the closure did not end the villagers' troubles. Studies done for the Centre for Science and Environment (CSE) by the Aligarh and Roorkee universities, aided by the ministry of environment and forests (MEF), showed that groundwater aquifers and at least 90 wells were polluted. Follow-up studies pointed out that rains did not dilute the pollutants in any substantial measure.

The villagers gave a memorandum to Prime Minister Rajiv Gandhi in 1989, and the state government was ordered to conduct a detailed inquiry. In October 1989, a public interest litigation (PIL) was filed in the SC by the Delhi-based Indian Council for Enviro-Legal Action. The court passed its judgment on February 13, 1996.

The judgment
"Rogue industries" was the SC's nomenclature for the polluters of Bichhri. The principle of absolute liability was applied - that is, when an enterprise is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of persons either working in or residing in the surrounding areas of the factory, it owes an absolute and non-delegatable duty to the community to ensure that no harm results to anyone as a result of this activity. If any harm does occur, the enterprise must be held liable to compensate for it. The court's directions were as follows:

• Following calculations by MEF on the basis of a report from the National Environmental Engineering Research Institute (NEERI), Nagpur, the respondent (the industry) shall pay to improve and restore the environment in the area; the respondent was given six weeks' time to submit its explanation to the MEF; the secretary, MEF, would "determine the amount (of compensation) within six weeks of submission of the explanation".

• All plants, units and factories of the respondent will be closed and sealed.

• The claims for damages by people in affected areas can be filed either by them or by any organisation on their behalf.

• Quarterly reports on implementation of the order were to be filed.

• Chemical industries, to be treated as a separate category, will be allowed to be set up only after taking into consideration all environmental aspects; even existing industries may be scrutinised.

• All aspects of the establishment of environmental courts should be studied.

• Regular environmental audit should be undertaken by specialist bodies, with the power to inspect, check and take necessary action not only against erring industries, but also against erring officials.

... and its impact
ON ENVIRONMENT: Most of the lands affected by the water remain barren or with substantially low production. "I get one-fourth of what I used to get," says Our Prakash Nagdu, whose wheat field has been laced with salt deposits. Even the Water that seeps into farms through irrigation canals from the Udaisagar lake, turns brown as it percolates through the contaminated soil.

The extent of problems in store for Bichhri remains a matter of conjecture yet. In 1992, says the NEERI's report, "The total quantities of wastewater and that of sludge generated were around 8,250 cubic metres and 2,440 tonnes respectively for production of 375 tonnes (of H-acid)." Of this, only about 720 tonnes of the sludge was entombed in an underground tank by the Rajasthan pollution control board (RPCB). "Remaining sludge and sludge-mixed soil were, however, present in the plant premises," NEERI points out.

The annual cost of remedial measures recommended by the NEERI - assuming the number of affected wells to be 22 and land area to be 350 hectare (ha) - amounts to Rs 3,738.5 lakh. NEERI has also proposed that compensation worth Rs 342.8 lakh be paid to the villagers. Keeping in mind the 'polluter pays' principle, the sc has asked the MEF to consider the NEERI report as a show-cause notice to the industry. But environmental experts like R L Siddiqui of Aligarh Muslim University have termed the NEERI plan as "highly impractical" because of the following reasons: the pollution in this case was not from a single point; an enormous quantity of polluted soil was involved; treatment entailed use of huge amounts of energy and water; and the problem persisted despite good monsoons.

ON THE POOR: Bichhri's villagers and NGOs seem to have lost steam. "You get fatigued," says Kishore Saint of the Udaipur-based NGO Ubeshwar Vikas Mandal, who had introduced CSE to the issue. The MEF, which had a 12-week deadline to determine the environmental damage to Bichhri on the basis of the NEERI's report, has not made any known progress beyond sending a notice to the industries. Not a paisa has been paid as compensation. While talking about the possibility of natural environmental restoration, an RPCB official in Jaipur vaguely says: "It may take a decade or more..."

There are individuals, however, who have not thrown in the towel. Prominent among them are Sukhlal Dangi, leader of the affected farmers, and Mannaram Dangi, the local lawyer who had taken Lip the case initially. While Sukhlal urges people not to give up, Mannaram is drafting a civil suit on the SC's suggestion. There are at least 400 farmers in 11 hamlets in the region directly affected by the groundwater pollution. There could be more, as the pollutants need not necessarily be visible.

But the civil suit itself may turn out to be a major hurdle for Bichhri's villagers. Compensation for environmental damage is a relatively new topic in India. Says P N Bhagwati, former Chief justice of India, "Environmental litigation is a new area in India. Often, our courts are not adequate to handle such technically complex issues." Mannaram points out that the nation's three main acts on environment are defective, as they put the onus on ill-functioning PcBs which lack adequate popular representation.

In yet another case pending before the local labour court, workers of the closed units are seeking compensation. The SC-ordered closure of the factories has left 84 workers and 25-30 office staff high and dry, according to Chunilal Patel, unit secretary of the Bhartiya Mazdoor Sangh.

ON GOVERNMENT AGENCIES: Has the sc order influenced the action of the enforcement agencies in the long run? "No," comes the reply from a senior RPCB official. "It is our job anyway to check pollution," he says, Board officials in Jaipur, who are directly connected with the case, are all praise for the order. Says one: "It is one case in which the PCB has not been pulled up. We have done our work ... a 'legally correct' stance for which there are few takers.

In his reply to an unstarred question in Lok Sabha on March 18, 1997, the Union minister of environment and forests, Saifuddin Soz, pointed out that the "Centre bad directed the respondent industries to deposit the costs required for carrying out the remedial measures, including removal of sludge". However, the government's apathy reflects in the delayed supply of drinking water to the affected villages; the work of laying down pipelines remains unfinished.

What the law missed
in the present case, the SC has only provided for rectification of environmental damage. Moreover, by the time the court ordered the sealing of the industries, they had already been closed for several years. The need of the hour was to provide succour to a people whose lands and cattle were being Slowly poisoned. The court could probably have ordered exemplary compensation to the suffering villagers, or taken direct action on the owner. While the Bichhri units have been seized and sealed, the owner's offices in Mumbai or his H-acid factor), in Wapi, Gujarat, remain untouched.

Legal action to ensure proper follow-up of the court order is missing and the MEF has not been taken to task for its sloth. Eight years after the factories have been shut, the groundwater remains polluted. The issue of compensation is another contentious point. Environmental lawyer M C Mehta points out that without waiting for legal clearance regarding damages, the state government should have paid compensation to the suffering villagers on the basis of the district administration's earlier assessment of losses amounting to Rs 12 lakh. Mehra himself did precious little to ensure that compensation was awarded. Also, he did not follow-up with an appeal to court that the MEF was dragging its feet. This lacuna highlights the need for an interface between a lawyer and the people he is representing, or at least with those NGOs that had worked with the people at close quarters.

Does the local industry see any change in itself after the order? "No," says chief manager (environment), M L Bhandari of Hindustan Zinc Ltd (HZL), emphatically. The HZL itself, though having earned a clean chit from the NEERI, is a culprit according to the RPCB; it opens its storm drains into the Udaisagar irrigation canal. Trading of charges and counter-charges is the order of the day. It seems to be business as usual in Bichhri - after court hours.

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