Case: Kalyaneshwari Vs. Union of India &amp; Others

2. The above writs/directions have been prayed for on the premise that petitioner, Kalyaneshwari, is a non-governmental organization, registered under the Societies Registration Act XXI of 1860. It is a voluntary organization allegedly promoted to serve the general public without distinction of caste or religion and working for the protection of consumers interest. This Court in the case of Consumer Education and Research Centre v. Union of India [(1995) 3 SCC 42) ] accepted the well established adverse effects of asbestos including the risk beyond the work place and held asIt would thus be clear that disease occurs wherever the exposure to the toxic or carcinogenic agent occurs regardless of the country, the type of industry, job title, job assignment or location of exposure. The disease will follow the trail of the exposure and extend the chain of carcinogenic risk beyond the workplace. It is the exposure and the nature of that exposure to asbestos that determines the risk and the diseases which subsequently result. The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life...The petitioner alleges that developed countries all over the world have drastically reduced the manufacture of asbestos and some of them have even banned different types of asbestos. In India, the use of this carcinogenic material is increasing every year approximately at the rate of 12% and the petitioner drew attention of the concerned authorities towards this issue and requested them to take stringent actions, but to no effect. The World Trade Organisation considered this aspect in the EC-Asbestos case, [WT/DS135/ABR] adopted on 5th April, 2001 where its appellate body observed that available scientific data reveals that a high mortality rate persists despite the so called `safe use of Chrysolite Asbestos. Surveys carried out more than 30 years after the introduction of controlled use policy in United Kingdom indicate a significant increase in deaths from Lung Cancer and Mesothelioma, not only among the workers but even to the families residing nearby such plants. Citing the example of some countries and the measures being taken by different organizations, request was made for banning import, manufacture and use of asbestos and it is averred that `controlled use is hardly workable. It is also averred by the petitioner that in most parts of the world, there was a drastic reduction in manufacture and use of asbestos. In fact, efforts are being made to ban on use of asbestos in any form. On the contrary, in India, use of asbestos was permitted indiscriminately on the premise that its controlled use is absolutely safe. There is a large number of victims in India who are suffering from various effects of asbestos in one form or the other. The petitioner claims to have identified five hundred plus victims from five different States, namely, West Bengal, Rajasthan, Jharkhand, Andhra Pradesh and Tamil Nadu. The petitioner claims that in order to find out the exact health scenario of asbestos workers, it got 14 direct workers of an asbestos unit examined by qualified occupational health doctors and the results were shocking, inasmuch as 13 workers were suffering from asbestosis with five workers being in advanced stage. Though these workers are covered under State ESI Scheme, no proper and adequate treatment is being provided to them. Thousands of poor and ignorant people in Udaipur District in Rajasthan were engaged in asbestos mining before the Ministry of Mines decided in the year 1996 not to issue or renew any asbestos mining licenses in India. Still today, some of them are engaged in illegal mining, which they do at the instance of local asbestos products manufacturers. It is also averred by the petitioner that there is complete failure on the part of the manufacturers in providing safety equipments to workers, regular health check-up, monitoring air borne dust and maintaining health register of the workmen. The petitioner also claims to have already documented more than 500 victims suffering from asbestos related diseases from the above-noted five States and, upon examination by well-known chest specialists, they have been identified as suffering from such diseases. The cost of the treatment is quite high. First, no compensation has been paid to these victims and second, even if some compensation was paid it was too meagre to meet the expenses. All these victims are suffering for no fault of theirs but due to exposure to asbestos over which, they hardly have any control. There is no law in place which directs payment of compensation to such victims. No medical records are being maintained to regulate the treatment of victims of Asbestosis. The carcinogenic properties of asbestos including Chrysotile or White Asbestos, are well-established and the same is a universally accepted fact. Despite overwhelming evidence, asbestos which has been banned in other countries is still being manufactured, imported and used in India and the Government has failed to take proper action which compelled the petitioner to approach this Court by filing the present Writ Petition in larger public interest as there is apparent violation of Articles 14 and 21 of the Constitution of India.This petition was filed in the year 2004. Thereafter, notice has been issued to the respondents, various affidavits have been filed and the matter has been heard from time to time. One of the main objections raised by the respondents and, particularly, respondent No. 37 i.e. Asbestos Cement Product Manufacturers Association is that the present Writ Petition is an abuse of the process of the Court and has been instituted at the behest of a business rival. The petition lacks bona fide and is intended to take unnecessary advantage of the proceedings before the Court. This issue, to a large extent, has been dealt with by a Bench of the Gujarat High Court in B.K. Sharma v. Union of India, [AIR 2005 Guj 203 ]. Yet, the present petition has been filed with the intention of creating impediment in the establishment and running of the industrial units in various States dealing with production or manufacture of asbestos in accordance with law and without infringing any right of others whatsoever. This issue is of some significance and we shall proceed to deliberate on the same and record our conclusion at a later stage. First, we would like to deal with the merits of the case and what directions, if at all, can be issued by this Court.Several States, Union Territories as well as Union of India have filed separate affidavits. In the affidavit filed on behalf of the Union of India, it is stated that the organized sector in India uses only imported variety of Chrysotile asbestos which is considered to have least harmful impact on the health of workers engaged in the manufacture of asbestos products and sufficient precautionary measures are being taken by the industry to protect the workers from excessive exposure to the hazardous impact of asbestos fibre. Meeting the contentions raised by the petitioner as aforenoticed, it is submitted on behalf of the concerned respondents that only selective references have been made by the petitioner to unnecessary inflate the impact of asbestos fibre on public health. No recognition has been given by the petitioner to the strict emission norms prescribed for the industries manufacturing asbestos products by Ministry of Environment and Forest and other efforts undertaken by the Ministry have also not been referred to by the petitioner. Prescription of stringent emission norms is one of the main effort made by the concerned Ministry.The prescribed norms in the Environment (Protection) Act, 1986 are as followsstandards are 2.0 mg/Nm3 of total dust and 4 fb/cc of pure asbestos material, now being revised to 0.5fb/cc. Ministry of Labour has revised the permissible work place emission norms vide notification dated April 2001 bringing it down to 1 fb/cc from 2 fb/cc. The report of WHO in this regard has been quoted out of context. In the said report it has been clearly stated that further research is required to determine the adverse impact of Asbestos Fibre on human health.The asbestos product only contains 8-10% asbestos fibre and the rest is cement (50%), clay (30-35%) and fly ash, wood, pulp, etc. which are not considered harmful for human health. Even here the asbestos fibres are locked with cement matrix particles and there is no scope for its disintegration/spreading in the air in normal circumstances. Referring to the proceedings before the Calcutta High Court, the Union of India submitted that the Calcutta High Court refused to impose any ban on the manufacture and use of asbestos in Writ Petition No. 412 of 2002, copy of which has been placed on the record. It is the stand of the Union of India that the petitioner has not furnished any details of the industries which are working contrary to law and where the workers are exposed to such hazardous health conditions. It is only then that the Government can take action in accordance with law and the petition, as such, lacks specific particulars.States have taken different stands in their respective affidavits. However, all of them have stated that appropriate measures are being taken to ensure working of such units in accordance with law. In the affidavit filed on behalf of the State of Kerala, it is averred that there is only one factory carrying on manufacture of asbestos cement sheets and allied products in the entire State. This factory has obtained licence under the provisions of the Factories Act. It is further pointed out that this factory was established with fully automatic fibre handling system in the year 1986. After that, no asbestos manufacturing factory has been established in the State. While referring to the judgment of this Court in the case of Consumer Education and Research Centre (supra), it is averred that strict instructions were issued to the Inspector of Factories and Boilers to take urgent steps for implementation of the directives of this Court. There is constant watch/review upon the standards of permissible exposure limit. Value of fibre/cc should be in line with the international standards and it would not exceed 0.1 fibre/cc at any time in the last three years. Some states like Himachal Pradesh, Tripura, Mizoram, Sikkim, Arunachal Pradesh and Manipur have stated that there is no asbestos factory within their territory.8. State of Tamil Nadu in its affidavit has averred that only 13 factories which are handling Asbestos have been brought under the purview of Factories Act, 1948 out of which 3 factories are not working for the past 5 years and in the remaining 10 factories "Membrane Filter Test" is regularly being conducted and the asbestos fibre is found to be within the permissible limits. The workmen of these factories are covered under the Workmen Compensation Act/Employees State Insurance Scheme/Group Insurance of Insurance Company. Thus, their interests are well protected. State of Bihar in its affidavit has stated that presently there is no industrial unit involved in manufacturing asbestos in the State. The use of asbestos product in the State is limited and is not to an extent that the secondary user of asbestos is likely to suffer from Mesothelioma fatalities attributed to asbestos. On the contrary, it also appears from the records that there are 22 cases of asbestosis in Gujarat and three cases of Mesothelioma in Andhra Pradesh. Out of these, persons suffering from Asbestosis or other diseases in Gujarat have not been given any compensation and their cases are pending, while the three persons suffering from Mesothelioma in Andhra Pradesh have been paid the compensation. Thus, it is a matter which essentially has to invite the attention of the Court.

Reasoning:
26. The document referred to as Ex.P9 in paragraph 36 of the Writ Petition is probably the only document which allegedly records the conditions of a few workmen in India and contains the names of a few doctors and workers. This document is neither signed by anybody nor does it give address of any workman or the industry/factory where such workman is working. It is expected of the petitioner to have made proper efforts in collection of such material before it moved this Court to treat this problem at the national level and had spent its judicial time. All the States in the country have been issued notices of this petition and they have denied the allegations. It was incumbent upon the petitioner thus to at least substantiate the averments in the petition by some cogent and documentary evidence actually related to the working conditions of the workmen in various factories in different States. In our view, the petitioner has miserably failed to discharge this onus.