BRIEFING PAPER
SEPTEMBER 2017
Relevance of Brazilian Supreme
Court’s verdict declaring use of asbestos as unconstitutional for India
Even “controlled use of
asbestos” deemed unconstitutional
“I lost my mother due to mesothelioma for no fault of hers.
we have not used asbestos at all however it seems the fibers have spread in the
environment. Only those who have suffered this dreadful disease can know the
pain and we have seen my mother go through enormous pain during these years. I
stay in mumbai and yes i have the medical records. There is no cure for
mesothelioma and i hope one day we find it.”
-----Amit Kumar Jain, September 8,
2017 in a written communication with the author
These days while India’s
ministry of railways is rightly busy removing asbestos from railway platform across
the country but one witnesses waste dump of broken roof sheets which is a
design feature of every asbestos based product strewn around on the station and
in nearby areas putting unsuspecting passengers and citizens at grave risk of
exposure to the hazardous mineral fibers banned in some 60 countries. Piyush
Goyal, the new railway minister needs to urgently ensure barricading of the
asbestos laden area to avoid any effect on passengers and locals in its surrounding.
.He must get a safety audit done so that only skilled and competent persons get
employed for removing hazardous asbestos sheets. Asbestos abatement and removal
must be carried out by a competent, approved asbestos removal contractor. Once
the asbestos has been safely removed, there has to be certification of a clean
air clearance. There must be a system for wrapping/disposal of removed sheets.
The disposal of asbestos debris requires its proper scientific landfilling. The
use of asbestos based products and technology carries continuing burden of harm
throughout its life cycle. Asbestos
mineral fiber of all kinds including white chrysotile asbestos has been
certified by the World Health Organisation (WHO) to be carcinogenic. Asbestos
related diseases are preventable but are incurable. The prevention can only
happen if one is saved from exposure to air borne asbestos fibers, which are
always in a state of decay and erosion even when it is mixed with cement. Such
fibers can be seen with naked eyes in the asbestos based roofs and other
products like brake shoe and brake lining in almost all the vehicles.
What aggravates the
situation in India is that among the most deprived and marginalized communities
as many as 16.4 per cent in the rural areas and 20 per cent in the urban areas
live and work under asbestos roofs. S0me 79 per cent of Indian Dalits live in
such houses. This came to light from the 2011 Census figures released on the
Scheduled Caste households by amenities and assets by the Office of the
Registrar General & Census Commissioner.
Having been the
chemicals minister, although Ram Vilas Paswan, Union Minister of Consumer
Affairs, Food and Public Distribution is aware of the hazards of asbestos, he
has not taken any step so far to save the consumers from asbestos products by
announcing ban on them.
Having served as the
Permanent Representative of India to the UN from 2009 to 2013, Hardeep Singh
Puri, the new Minister for Housing and Urban Affairs, must pay heed to this
unhealthy situation due to rampant presence of asbestos laden houses and
buildings in cities and across the country. Notably, efforts are underway to
make UN buildings asbestos free. As part of $2.1 billion renovation work from
2008 to 2014, the amount of asbestos that was removed from the United Nations
complex in New York City complex was enough to fill three football fields
fifteen feet high. The Geneva headquarters of the UN is also going to become asbestos
free after he United Nations General Assembly in New York approved the
renovation project for the Palais des Nations complex in Geneva. This complex hosts
around 10,000 UN employees, which is more than the official headquarters in New
York. The work has commenced this year and is estimated to cost $846.6 million.
A report presented by the UN Report of the Secretary-General in July 2000 had
undertaken the assessment of asbestos-containing materials at United Nations
buildings located in Geneva, Vienna and Nairobi and at regional commission
buildings in Addis Ababa, Bangkok, Beirut and Santiago and harmful effects of
such materials on the health of staff members, delegates and other persons working
in and visiting the buildings. Puri should order similar assessment for
buildings in India. He should write to all the state urban development
ministers and urban local bodies to stop usage of asbestos in all the
municipalities and for
some 7, 935 urban centres.
Although Narendra Singh
Tomar, Union Minister of Rural Development, Panchayati Raj, and Mines has been
apprised of the fatal consequences of continued use of asbestos because of
which his mines ministry has technically banned its mining, so far he has not
done anything to ensure that public health of rural folk is safeguarded. The minister should write to all the
Panchayats to refrain from procurement of construction of asbestos cements
sheets and other asbestos based products to ensure asbestos free villages.
Asbestos causes mesothelioma
(cancer of the thin membranes that line the chest and abdomen) and cancers of
the lung, larynx and ovary. India’s National Institute for Health and Family
Welfare estimates secondary exposure to asbestos used in construction has
resulted in higher incidence of cancer among those living under asbestos roofs.
It is a commentary on the scientific temper of the country that even Yoga
centres are being run under asbestos roofs like in Jawaharlal Nehru University
(JNU) and the premises of medical and engineering colleges besides other public
buildings which are laden with asbestos based products. Prakash Javadekar,
Union Minister of Human Resource Development ought to intervene to ensure
asbestos free educational institutions
On 24 August, 2017,
Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the
Brazilian state of São Paulo has the right to forbid the production and selling
of white chrysotile asbestos, a carcinogenic mineral fiber. As many as 10
Brazilian states prohibit use of this mineral fiber because of the incurable
diseases caused by it. India’s Supreme Court and High Courts have consistently
expressed their serious concerns regarding exposure to these carcinogenic
mineral fibers and has asked the central and state governments to update their
laws as per fresh resolution of International Labour Organisation (ILO), which
has sought elimination of future use of white chrysotile asbestos to safeguard
human health. But the governments in India have not complied with its directions
so far.
Although mining of all
kinds of asbestos is technically banned in India. According to Indian Minerals
Yearbook published in December 2015 import of white asbestos from Russia,
Kazakhstan, Brazil and China continues. It endangers the public health of
present and future Indians.
Following the verdict,
Brazilian São Paulo state has withdrawn the controlled use of asbestos law for
the whole country. Other states will have to take similar action. Brazilian
Supreme Court has already said that the production and the selling are
unconstitutional. The President of the Supreme Court observed, “In concern of
the environment, if any doubts, it must be prohibited so that the rights for us
today and tomorrow won’t be lost for the ones that come after us.” Indian
courts too should adopt this universally accepted precautionary principle and
the inter-generational equity principle to save the public health of Indians
like the Brazilian Court.
It is clear that the
decision with regard to Brazilian São Paulo state has set an “important
precedent” because the Court has excluded the law that allowed controlled use
of this hazardous mineral fiber. The law that allowed usage of asbestos has
been deemed unconstitutional
The Federal Supreme
Court (STF) is the highest level of judicial system in Brazil, which is
responsible for determining the constitutionality of laws. This Court has held
that the extraction, processing, use and marketing of all forms of asbestos,
including white chrysotile asbestos violate the Brazilian Federal Constitution.
Responding to the
verdict, Fernanda Giannasi from Brazilian Association of exposure to asbestos
(ABREA), a renowned leader of global anti- asbestos struggles said, “There is
no more legal support to the controlled use of asbestos in Brazil. The
important decision taken on 24 August means that there are no obstacles for the
states and municipalities to prohibit asbestos. The public entities cannot give
lame excuses for their failure to enact and enforce laws to safeguard people
from exposure to hazardous fibers of asbestos.
Now that the Brazilian Court has decided on the constitutionality of the
matter, it is the prerogative of the Brazilian Parliament to prohibit use of
this carcinogenic fiber.” She said, "The victory at STF is the result of
extensive construction of social movements in defense of workers' health.” Fernanda Giannasi visited New Delhi in 2002
to ascertain the public health situation in the country and share her insights.
Notably, 10 Brazilian
states and more than 35 Brazilian cities have valid laws banning asbestos. This
verdict paves the way for the other cities and states to prohibit the toxic
mineral fiber. No one can cite possibility of “safe and controlled use” as a
ground to continue its usage of asbestos.
The core issue before
the Court was the constitutionality of federal law which allowed use with
restrictions on the exploitation and the use of asbestos in the variety of
chrysotile, it’s adherence to rights to life, health and the environment. The
validity of state laws and municipal authorities, who had banned white asbestos
in their respective territories while the federal law permitted, was also
before the Court that required ascertainment of the distribution of legislative
powers between the federal government, states and municipalities.
The trial was conducted
in two stages. At trial regarding the federal law authorizing the production
and consumption of asbestos, the Court built a majority pro-banishment, for
five (5) votes against 4 (four). Due to the prevention of two judges who had
issued opinions on the cause before taking their seats in Court, the quorum of
11 (judges) was reduced to only 9 (nine). Thus, it was not possible to achieve
the 6 (Votes) as required by the Constitution for a declaration on the
constitutionality of federal law have general effect and binding.
A second phase of the
trial undertook to resolve this impasse, to define in practice to achieve the
banning of all forms of asbestos in Brazil. When examining the text of the
state law of São Paulo that banned asbestos on its soil, the Supreme Court
stated, by eight (8) votes against 2 (two), the full acceptance of the legal
force of this measure.
The range of this
pronouncement is not limited to a state. It is applicable for the whole country
because it has assumed a national character. By a vote of 6 judges of the
current composition of the Supreme Court, the validity of the ban approved in
state laws is based precisely on the unconstitutionality of permissible federal
law. As a consequence of a mere formal question to prevent the participation of
a judge in the main proceedings, the unconstitutionality was not binding,
although in practice this is what will happen.
After the trial, the President
of the Court, Justice Carmen Lucia, clarified, through its press office that
the decision effectively overturned the authorization of the use of white
chrysotile asbestos throughout the national territory. During the trial, the
President of the Court recalled that asbestos compromises the future of coming
generations and defended its banishment "By the principle of precaution,
in case of environment, in doubt whether to seal".
Justice Celso de Mello,
dean of the Court said, "The Supreme Court declares the
unconstitutionality of this provision which permitted the chrysotile asbestos,
by an absolute majority, cut off from the universe national law a rule that
permitted, even if through controlled use, the use of asbestos. The use of
asbestos chrysotile is now sealed". Thus, the use of this type of asbestos
is completely sealed in the country.
The lawyer Roberto
Caldas, Mauro MENEZES and lawyers who represented before the Court the victims of contamination by
asbestos, organized around the Brazilian Association of exposure to asbestos
(ABREA) and the National Association of Attorneys of the work (ANPT) said, "It
is ended the great war by banning of asbestos. Now let's take care of the
aftermath: measures of achievement, service and repair just for
victims."For the lawyer Mauro MENEZES also advocate the banning of
asbestos in the gallery of the STF, the decision "reaffirms the vocation
Brazilian constitutional, to require that the economic development note social
guarantees and environmental population". Mauro MENEZES concluded, “The
situation reveals that the federal law is moribund, it is in a terminal stage.
When the Court declares its unconstitutionality, this law is no longer
efficient in the national judicial order”.
In the aftermath of this verdict, the states
and to the federal districts are under a logical and legal compulsion to bring
bills for the banishment of asbestos in the states which have no laws
prohibiting the carcinogenic asbestos as yet.
Brazil’s National
Confederation of the Industrial Workers (CNTI) had initiated an action with the
aim to get the law on the prohibition of asbestos in the state of São Paulo
declared as unconstitutional and revoked. The Court did not heed the request
and has endorsed the prohibition of this mineral fiber.
Brazilian Court found
that the asbestos based products are not safe for people’s health and to the
environment, which was in contradiction to the Constitutional provisions.
Taking cognizance of
these development and continued harm to Indians, it is high time Ravi Shankar
Prasad, Union Minister of Law and Justice introduced a bill to ban asbestos of
all kinds in India.
The recent estimate is
that asbestos is causing 194,000 occupational deaths globally
every year. Notably, South Africa banned
asbestos in 2008. Now that Brazilian court’s order has established the
illegitimacy of asbestos use, it is high time BRICS (Brazil Russia, India,
China and South Africa) governments make their present and future citizens safe
from hazards of asbestos fibers. If Jagat Prakash Nadda, the Union Minister of
Health and Family Welfare does not seek prohibition on the use of asbestos
based products to safeguard public health he will be deemed guilty of
dereliction of duty given the fact that Ministries of Environment and Labour
have sought ban on asbestos. He must ensure creation of environmental and
occupational health infrastructure and competent environmental and occupational
health doctors to diagnose the asbestos related diseases.
Having been a health
minister, Dr. Harsh Vardhan, the Union Minister of Science and Technology, Earth
Sciences and Environment, Forest and Climate Change must stop granting
environmental clearances to asbestos based factories to demonstrate consistency
in his ministry’s approach. Santosh
Kumar Gangwar, Union Minister of Labour and Employment must reiterate his
ministry’s resolve to save workers from asbestos related diseases by
eliminating asbestos related work from the industries.
Large reserves of
asbestos are located mainly in China, Kazakhstan and Russia. The world
production of asbestos was 1.9 million tonnes in 2013. Russia was the leading
producer and accounted for 53% production followed by China (21%), Brazil (15%)
and Kazakhstan (13%). So far countries like Brazil, China, India, Indonesia,
Mexico, Russia, and USA are yet to ban asbestos. Suresh Prabhu, the new
Commerce and Industry Minister ought to intervene at the earliest to safeguard
Indians from continued exposure to foreign asbestos fibers. He must resist the
unscientific approach of Ananthkumar, Union Minister of Chemicals and
Fertilizers who has made India into a laughing stock among the comity of
nations by inconsistently claiming that asbestos is not a hazardous substance
at the meeting of the UN’s Rotterdam Convention on Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
in Geneva although domestic laws are quite clear about it being a hazardous
substance. Prabhu must also persuade Arun Jaitley, the Union Finance and
Corporate Affairs Minister to provide incentives to the alternatives of asbestos
and refrain from making asbestos artificially cheaper as has been done in the
past.
Taking note of the
grave threats to the public health of people in BRICS (Brazil Russia, India,
China and South Africa) countries, there has been a persistent demand for phase
out of asbestos industry in the country. These mineral fibers must be banned to
save citizens, consumers and workers who are dying a painful death due to
exposure to carcinogenic fibers of white chrysotile asbestos procured from
Russia, Brazil, Kazakhstan and China. Notably, the incurable asbestos related
diseases are caused primarily by the inhalation of asbestos fibers. These
diseases take up to 50 years after exposure to develop in a situation where
there is almost no infrastructure and skill to even diagnose these
environmental and occupational diseases. To begin with governments and local
bodies in India must stop procurement of asbestos based products. Nirmala
Sitharaman, Union Minister of Defence must make our military establishments
free of asbestos. Governments must make public buildings free of asbestos on a
priority basis. They must prepare a register of asbestos exposed persons and
asbestos laden buildings and announce a compensation package for the victims of
asbestos exposure. Notably, Calcutta High Court and Kerala Human Rights
Commission have already taken the first steps in this regard.
Dr Gopal Krishna
The author is a public
policy and law researcher and Editor of www.toxicswatch.org
This paper has been published at www.livelaw.in
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