BANI's Letter to Labour Minister on implementation of 23 year old verdict of Supreme Court in asbestos case

To

Shri Santosh Kumar Gangwar
Union Minister of Labour and Employment

Government of India

New Delhi

Subject- Implementation of 23 year old verdict of Hon’ble Supreme Court in Consumer Education and Research Centre (CERC) Vs Union of India case

Sir,

With due respect this is to request you to kindly share details which your ministry may have about the status of the enforcement of judgment of Hon’ble Supreme Court’s order in Consumer Education and Research Centre (CERC) Vs Union of India (1995 AIR 922, 1995 SCC (3) 42) that recognized right to health as part of right to life in the backdrop of its 23^rd anniversary.

We submit that in this CERC case the petitioner had applied for remedial measures to fill in legislative gaps, to require mandatory compensation for occupational hazards and diseases or death to employees who did not qualify for such coverage under the existing Acts (Employees State Insurance Act and the Workmen Compensation Act). The petition prayed for adequate mechanisms for diagnosing and controlling asbestosis (such as mandatory mechanisms to measure levels of asbestos in workplaces coupled with expert panels to established permissible levels of asbestos). It prayed for establishment of a committee to recommend whether the dry process can be completed replaced by the wet. It prayed for preparation of health records of each workman and to provide compulsory health insurance for employees. The petitioner prayed for award compensation to those suffering from asbestos related diseases. Hon’ble Court granted relief.

As you are aware asbestos is a “fibrous mineral of hydrated silicates” which can be divided into two groups: amphiboles and serpentine. There are five varieties of asbestos within the amphibole group: anthophyllite, amosite (or brown asbestos), crocidolite (or blue asbestos), actinolite, and tremolite. The serpentine group comprises only chrysotile (or white asbestos). These varieties of asbestos have different physical and chemical properties. It is mainly amosite, crocidolite and chrysolite which are exploited for industrial and commercial purposes. Asbestos is a proven hazardous substance. The Chemical Review Committee of UN's Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade has established that all forms of asbestos include white chrysotile asbestos are hazardous substances and are carcinogenic.  

We submit that at least since early 1970s there has been growing awareness as to the risk of asbestos. In 1972, Denmark banned the use of asbestos for therman and noise insulation and wateroroofing. In 1980, it banned all uses of asbestos with the exception of asbestos-cement roofing. In 1973, US banned the use of spray-applied surfacing asbestos-containing material for fireproofing/insulating purposes. In that very year Sweden banned asbestos spraying. In 1975, USA banned installation of asbestos pipe insulation and asbestos block insulation on facility components, such as boilers and hot water tanks, if the materials are either pre-formed (molded) and friable or wet-applied and friable after drying. In 1976, Sweden adopted guidelines which recommended ban on crocidolite variety of asbestos. In 1977, USA banned use of asbestos in artificial fireplace embers and wall patching compounds. The following year it banned spray-applied surfacing materials for purposes not already banned. In 1980, Israel introduced a series of restrictions on the use of asbestos from the 1980s which eventually amounted to a de facto ban on the use of asbestos. Israel introduced its first ban on the use of asbestos including amosite, chrysotile, crocidolite, anthophyllite, tremolite, actinolite, and any mixture that contains one or more of these fibers in Work Safety Regulations. Since 1977, WHO has recognized that all varieties of asbestos, including chrysotile are carcinogenic.

It was in such a global context that the writ petition in question was filed by Consumer Education and Research Centre (CERC) in the Hon’ble Supreme Court of India. The petition came up for consideration in 1986 as Writ Petition (C) No 206 of 1986. In this asbestos related litigation reported in 1995 (3) SCC p.42, various issues relating to safety of asbestos, and adequate compensation to the victims of asbestosis were raised in the petition. Hon’ble Court allowed the public interest petition of CERC.

While passing the judgment in the CERC case, Hon’ble Court directed all asbestos factories to keep the health records of their workers for 40 years and/or 15 years after their retirement. The second significant direction was the Government of India and the state governments have to mend their rules and regulation as per the resolution of International Labour Organisation (ILO). The ILO says eliminate asbestos of all kinds for elimination of asbestos related-diseases. Controlled use is not possible. It has not been possible for all the countries which have banned it and this is impossible in India too. It also directed that a compensation of Rs 1 lakh be paid to the asbestos victims. 

Subsequent to the verdict CERC case, in 1997 France prohibited the manufacture, processing, sale, importation, domestic marketing, possession for sale, offer and transfer of all varieties of asbestos fiber regardless of whether the substance had been incorporated into the materials, products or devices.[1] Canada in 1998 approached the WTO dispute settlement body to establish a panel to review the decision taken by France.[2] The panel in their report upheld the decision taken by France. The report stated that all members of WTO have the right to set its own desired level of protection against risk arising from exposure to asbestos. The appeal against the said decision was also unsuccessful. The panel report of WTO on “European communities- measures affecting asbestos and asbestos containing products”; has observed that “3.74… the more that is imported into a country, the more deaths there are from cancer caused by asbestos. Analysis of the data for ten western countries shows a very clear and strong co-relation between cases of mesothelioma and consumption of asbestos per inhabitant, measured by amount of imports. A study was conducted where the rates of cancer in the ten countries were compared with the total amount of asbestos imported per inhabitant (the study analyses the statistical correlation between the two values). This correlation is extremely strong (the very revealing correlation coefficient is 0.70). According to European Commission, the number of cases of cancer increases proportionally with the increase of imports of asbestos into each country. It is important to note about 95.5 of all asbestos used in the world is chrysotile[3].”[4] 

It emerges that when defending the indefensible asbestos factories becomes a compulsion of officialdom, disasters like the one witnessed in the Bhopal based factory of Union Carbide Corporation (UCC)'s hazardous pesticide plant become the order of the day. It is noteworthy that UCC was also in the asbestos business whose liability has been owned by its buyer US based Dow Chemicals Company. It has assigned $ 2.2 billion dollars for compensation fund to the victims in US where 10, 000 people are dying every year from asbestos related diseases. In India, no such asbestos fund has been created to compensate the victims of asbestos related diseases.

In its discussion of the worker’s right to health and a healthy and safe work environment, the Court cited several Articles from the Indian Constitution including Articles 38 (promote the welfare of the people), 39(e) (measures to ensure the health and strength of the workers), 42 (secure just and humane conditions of work), 43 (secure to all workers s decent standard of life), and 46 (protection of the poor from social injustice and all forms of exploitation).

In a number of writ petitions in Hon’ble Court jurisprudence of personhood has upheld the primacy of the right to life and dignity whereby Article 21 of the Constitution of India has established right to health and healthcare. The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights. Not prohibiting the import of asbestos is a violation of Article 21 of the Indian constitution.  In CERC case related to asbestos, Hon’ble Court held that the right to health to a worker is an integral facet of meaningful right to life to have not only a meaningful existence but also robust health and vigor without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in an industry exposed to health hazards due to indigence to bread-winning for himself and his dependents, should not be at the cost of the health and vigor of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service.

It further observed, “20. The preamble and Article 38 of the Constitution of India the supreme law, envisions social justice as its arch to ensure life to be meaningful and liveable with human dignity… Social justice, equality and dignity of person are corner stones of social democracy. The concept ’social justice’ which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen. ‘Social justice’ is thus an integral part of "justice" in generic sense. Justice is the genus, of which social justice is one of its species.”

Hon’ble Court has held that “the jurisprudence of personhood or philosophy of the right to life envisaged under Article 21, enlarges its sweep to encompass human personality in its full blossom with invigorated health which is a wealth to the workman to can his livelihood to sustain the dignity of person and to live a life with dignity and equality.”[5]

Hon’ble Court observed, “19. (...) 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 exposure to asbestos and the resultant long tragic chain of adverse medical, legal and societal consequences, remains the legal and social responsibility of the employer or the producer not to endanger the workmen or the community of the society. He or it is not absolved of the inherent responsibility to the exposed workmen or the society at large. They have the responsibility legal, moral and social to provide protective measures to the workmen and to the public or all those who are exposed to the harmful consequences of their products. Mere adoption of regulations for the enforcement has no real meaning and efficacy without die professional, industrial and governmental resources and legal and moral determination to implement such regulations.”[6]

Hon’ble Court has held that continued treatment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity.

We submit that in its reply the Union Ministry of Health and Family Welfare informed the Parliament that “The Indian Council of Medical Research (ICMR) has informed that major health hazards of asbestos include cancer of lung, mesothelioma of pleura and peritoneum and specific fibrous disease of lung known as asbestosis. All types of asbestos fibers are responsible for human mortality and morbidity. Studies have been carried out at National Institute of Occupational Research, an Institute of ICMR, Ahmedabad which show that workers when exposed to higher workplace concentration of asbestos fiber have higher incidence of interstitial lung disease and pulmonary function impairment. Directorate General Factory Advice Service and Labour Institutes, (DGFASLI) under Ministry of Labour & Employment has intimated data of workers suffering from Asbestosis in factories registered under the Factories Act, 1948.As per the information provided by DGFASLI, it is informed that 21 no. of Asbestosis cases were reported in Gujarat in 2010 and 2 cases in Maharashtra in the year 2012.”[7]  

It is noteworthy that questions have been raised against asbestos based plants in Bihar State Assembly and Bihar Legislative Council. In a significant observation Hon’ble Chairperson of Bihar Legislative Council (BLC) and former labour minister said, “buying asbestos is akin to buying cancer” and “pain of asbestos related diseases is worse than the pain of unemployment.”[8]

We submit that Justice J.N. Singh of Hon’ble Patna High Court apprehended a Bhopal Gas Tragedy like situation due to Bihar's asbestos plants. It wondered as to whether any pollution control board has or should have the power to relax the norms, meant to control environmental pollution and safeguard the humanity from health hazards and any recurrence of Bhopal Gas Tragedy.[9] It expressed surprise at the relaxation for the two asbestos based manufacturing units of Tamil Nadu based Nibhi company at Giddha, Koilwar, Bhojpur and Tamil Nadu based Ramco company at Bihiya, Bhojpur in Bihar while cancelling the clearance of the asbestos based factory unit Vaishali’s Chaksultan Rampur Rajdhari near Panapur in Kanhauli Dhanraj Panchayat in Goraul block in Bihar which was proposed by West Bengal based Utkal Asbestos Limited (UAL).

In a related development, revealing a case of total environmental lawlessness, the monitoring report of the regional office of Union Ministry of Environment, Forests and Climate Change points out that although Tamil Nadu based Nibhi Industries Private Limited has been given environmental clearance (EC), the Environment Impact Assessment (EIA) report of company’s Bhojpur, Bihar based asbestos factory has not been provided. The reply to a RTI question by Bihar State Pollution Control Board (BSPCB) also informed that the EIA report is non-existent.

The monitoring report points out that there has been no compliance with the specific conditions with regard to regular medical examination of the workers and health monitoring of all the employees shall be carried out and if cases of asbestosis are detected, necessary compensation shall be arranged under the existing laws. A competent occupational health physician shall be appointed to carry out medical surveillance. Occupational health of all the workers shall be monitored for lung function test, chest x-ray, sputum for acid-fast-bacilli (AFC) and asbestos body (AB), urine for sugar and albumen, blot tests for TLC, DLC, ESR, Hb and records maintained for at least 40 years from the beginning of the employment or 15 years after the retirement or cessation of employment whichever is later. Occupational Health Surveillance shall be carried out as per the directives of the Hon’ble Supreme Court.” This act of omission is in violation of Hon’ble Supreme Court's order dated January 27, 1995. This order was reiterated on 21^st January, 2011 by Hon’ble Court. It has been referred to by Hon’ble Patna High Court as well in Civil Writ Jurisdiction Case No.9064 of 2013 and related cases. The company failed to provide any document on occupational health surveillance of the workers. 

The company was required “to educate the workers, all the work places where asbestos dust may cause a hazard shall be clearly indicated as a dust exposure area through the use of display signs which identifies the hazard and the associated health effects.” Given the fact that asbestos of all kinds is banned in some 60 countries due to its harmful effect, compliance with this condition is deemed important by the government. As per the monitoring report there is no compliance with this condition as well. 

Here is a factory which has become a case study in environmental health mismanagement. Even as Nibhi Industries V State of Bihar, writ petition (CWJC) No. 15399 of 2016 is pending for order before Justice Shivaji Pandey Bench in Hon’ble Patna High Court since August 2017, a new case Nibhi Industries Vs Union of India, writ petition (CWJC) No. 13269 of 2017 has been filed in the Hon’ble Court. Initially, both the cases were listed together before the same bench for orders. On 15 September, 2017 when CWJC) No. 15399 of 2016 came up for hearing before Justice Pandey, he passed an order saying “Put up this case along with CWJC No. 13269 of 2017. Earlier, on 23 August, 2017, he had passed an order saying, “If the petitioner, so desires, may file an application for separate   writ   application   with   respect   to   the   air   and   water pollution.”

It is noteworthy that prior to this the writ petition (CWJC) No. 15399 of 2016 has been listed continuously “for orders” on several occasions between 7 April, 2017 -0 23 August 2017 but was adjourned on each occasion. Now the case status on the Hon’ble Court’s website shows that the matter has been listed for orders before Justice Vikash Jain on 16 November and 24 November, 2017. Now both the cases have been put before a new bench of Justice Vikash Jain. Earlier, when the case came for hearing on 16 November, 2017, Justice Jain passed an order saying, “As prayed on the ground of non-availability of learned counsel for the petitioners, let the matter be listed on 24.11.2017.” It was scheduled to be listed on 24 November as per Hon’ble Court’s website but it did not appear in the cause list. As of 10 January 2018, there is no information on Hon’ble High Court’s website about the next date of hearing. 

It is also noteworthy that the bench of Justice Vikash Jain had set aside the order dated 15 January, 2015 of Principal Secretary, Department of Industries, Bihar in the matter of grant of subsidy to the asbestos company in question giving relief to it in Nibhi Industries Vs State of Bihar, writ petition (CWJC) No. 10908 of 2015 “with  a  direction  to  the  respondents  to  proceed  in  the  matter  of obtaining approval of the Chief Minister and accordingly dispose of the  matter expeditiously  and  in  any  event  preferably within  a period  of  three  months  from the  date  of  receipt/production  of  a copy of this order in the office of Principal Secretary, Department of  Industries, Government of Bihar, Patna.” But the relief and the direction for obtaining “approval of the Chief Minister” became inconsequential because Investment Promotion Board (SIPB) re-considered the case in the light of cancellation of company’s Emission Consent Order and the Discharge Consent Order by Bihar State Pollution Control Board (BSPCB) affirmed the decision of the BSPCB. Earlier, a bench of Justice Mihir Kumar Jha too had given relief to the company by its order dated 16 September, 2014. This too seems to have become inconsequential.

In view of such a situation, the second petition CWJC) No. 13269 of 2017 appears to be hunting for a convenient forum in an exercise of forum shopping. It appears that the Hon’ble Court has not paid attention to the glaring acts of omission and commission by the company endangering the life and health of the public health of residents of Koilwar, Bhojpur. 

The asbestos fiber cement roofing sheet factory of Nibhi Industries Private Limited at Giddha, Koilwar block, Bhojpur district in Bihar in a 15 acre area has been found non-compliant with the stipulated conditions contained in the Environmental Clearance (EC) dated 27 February, 2009 given to it. This has been come to light from the monitoring report of Ranchi based regional office of Union Ministry of Environment, Forests and Climate Change dated 17 August, 2017. This report is based on the monitoring done by the regional office and BSPCB on 25 July, 2017. Notably, the commercial production of asbestos cement sheets at Nibhi’s factory at Giddha, Koilwar, Bhojpur had begun on 17 August, 2011.

The second petition in the Hon’ble High Court has prayed for issuance of a Writ of Certiorari, quashing/setting aside the order dated 29 March, 2016 issued by Chairman, BSPCB whereby the Board has revoked its Emission Consent Order and the Discharge Consent Order which was valid till 31 March, 2018. It further prays that the order of BSPCB dated 22 September, 2016 directing Nibhi Industries Private Limited “to close its industrial plant with immediate effect" to be quashed.

The first petition has prayed for quashing/setting aside the order dated 21 July, 2016 issued by Director, Technical Development, Department of Industries, Bihar. This order is significant because through this order letter, the Department of Industries informed Nibhi asbestos company that 21 June, 2016, the State Investment Promotion Board (SIPB) has decided to cancel its consent given earlier to this company in 2009 for the establishment of asbestos cement sheet plant of 1 Lakh Metric Ton/Annum capacity at Giddha, Koilwar, Bhojpur. The decision was taken in the light of the BSPCB’s communication to it dated 8 April, 2016 about withdrawal of its consent given to the factory of this company. A copy of this decision of SIPB was also sent to BSPCB and Bihar Industrial Development Authority (BIADA).

It is noteworthy that in their counter affidavits in the first case, Department of Industries, Bihar and BSPCB have sought dismissal of the petition by Nibhi asbestos company on the ground of its maintainability. BSPCB has pointed out that the company has failed to appeal before the appellate authority within 30 days from the date of order. Had it approached the appellate authority and felt aggrieved by its decision, the company could have approached the National Green Tribunal. Thus, it is clear that the company failed to seek and exhaust available alternate remedy before approaching the Hon’ble High Court. In such a situation, while the Hon’ble Court is likely to dismiss both the petitions but the proclivity of the petitioner to delay the decision by non-appearance on the scheduled dates for orders has become a sight of curiosity.     

Bihar State Pollution Control Board (BSPCB) has revoked its emission-consent order and discharge consent order which was valid till 31st March, 2018. Chairman, BSPCB has ordered, the company in question, Tamil Nadu based Nibhi Industries Pvt Ltd. to “close your industrial unit with immediate effect, failing which complaints shall be filed u/ss. 44 of the Water (Prevention and Control of Pollution) Act, 1974 and 37 of the Air (Prevention and Control of Pollution) Act, 1981.”

In such a backdrop, we submit that there is a compelling logic for your ministry to ensure just compensation to workers and to ask the company to undertake decontamination of the site and create a compensation fund for present and future victims of Nibhi’s factory given the fact that it has exposed the workers besides the villagers of Giddha panchayat in particular and Koilwar block in general to asbestos fibers. This is required in the interest of present and future generations, to establish rule of law in environmental governance and to set matters right on the ground. 

We submit that the clearance of second asbestos based factory in Bihiya, Bhojpur, Bihar too has been cancelled but Ramco company continues to operate two units of its factory although it had clearance for only one. As a consequence of violations of the general and specific conditions given the environmental clearance and No Objection Certificate by Ramco Industries, BSPCB’s Chairman took its cognizance. He has issued an order saying, “I therefore, have no option but to treat this unit as a non-compliant industry and am not inclined to renew the Emission-Consent-Order and Discharge-Consent-Order for further period beyond 31.3.2016. The applications for Emission-Consent-Order and Discharge-Consent-Order dated 12.2.2016 are, accordingly, refused.”

Both these cases demonstrate that there is no compliance with the six directions given in Hon’ble Supreme Court’s order of 27 January1995 on the ground which endangers the health of workers and the communities living in the vicinity by failing to ensure a safe working environment.    

We submit that as per Directorate General of Commercial Intelligence and Statistics and Indian Bureau of Mines, there is continuous decline in import of asbestos during the period of 2014-15 to 2017-18 (April-September).[10] India’s total asbestos import from Russia, Kazakhstan, Brazil, China and other countries dropped to 310,570 tonnes in 2016-17 from 396,470 tonne in 2014-15 and 355,660 tonnes in 2015-16. It shows that import of asbestos from countries like China, Russia, Kazakhstan and Brazil has declined in the last three financial years. India imported 310,570 tonnes of asbestos in 2016-17 from Russia, Kazakhstan, Brazil, China and other countries. During April-September of the ongoing fiscal, India imported just 162,740 tonnes of asbestos.[11] This has been revealed by the Hon’ble Union Mines Minister in the Parliament.

India has banned mining of its own asbestos mines but it chooses to import thousands of tones of asbestos. The inconsistency in government’s policy is apparent from the Hon’ble minister’s reply in the Parliament.

In a significant development, a Division Bench of Hon’ble Calcutta High Court has passed an order which can set the process of making West Bengal free of asbestos based products. The order seeks removal of carcinogenic-asbestos that has been used for roofing in the Hon’ble Court’s buildings. This order underlines the serious unprecedented environmental and occupational health crisis with regard to the unnoticed epidemic of asbestos related diseases in West Bengal in particular and in the country in general. In Writ Petition (Civil). No. 14729 (W) of 2016, the Bench of Acting Chief Justice Nishita Mhatre and Justice Tapabrata Chakraborty passed the verdict observing, “The High Court main building is undergoing repairs with the assistance of the Public Works Department (PWD) of the Government of West Bengal and other Authorities. When the entire renovation is undertaken, it is expected that the Hon’ble High Court and the PWD or, any other body entrusted with the renovation will ensure that the asbestos-sheets, which have been used for roofing, would be replaced by any other materials which are non-carcinogenic.”[12]

Hon’ble Calcutta High Court has recorded that “there is sufficient study material indicating that asbestos sheets used for roofing could cause cancer” and “various documents, issued by the World Health Organization (WHO), and other materials obtained from the Internet, that the exposure to asbestos including chrysotile causes lung cancer, mesothelioma and asbestosis.”[13] It was contended by the petitioner that “the High Court should not continue to use these materials for roofing, especially after legislation in different parts of the world has been enacted on recognizing the potential health risk of asbestos to the citizens at large. Even in India several Acts recognized the fact that asbestos is a health-hazard.”

Prior to Hon’ble Calcutta High Court’s verdict, Kerala State Human Rights Commission recommended ban on use of asbestos roofs for schools and hospitals by its order.[14] National Human Rights Commission (NHRC) too has passed an order in Case No: 693/30/97-98 recommending that the asbestos sheets roofing should be replaced with roofing made up of some other material that would not be harmful.[15]

It is noteworthy that Vision Statement on Environment and Human Health of Union environment, forests and climate change ministry states that “‘Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out.”[16]. It is quite astounding that while “Grant of fresh mining leases and renewal of existing mining leases for Asbestos” has been banned by the Ministry of Mines in the country on Health Grounds[17], India continues to import asbestos. It shows that government has not translated its own vision into action.

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. Asbestos causes mesothelioma (cancer of the thin membranes that line the chest and abdomen) and cancers of the lung, larynx and ovary. 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.

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. Some 79 per cent of 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.

We submit that these days while ministry of railways is rightly busy removing asbestos from railway platform across the country but one witnesses workers without safety gear and proper training in asbestos handling employed and 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. There is a compelling need to ensure barricading of the asbestos laden area to avoid any effect on passengers and locals in its surrounding. It 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.  The workers who are employed in handling of asbestos musty be identified, registered and compensated for exposure to asbestos by the government.

We submit that on 24 August, 2017, Hon’ble Constitutional Supreme Court of Brazil decided with 8 votes against 2 that the use of all kinds of asbestos is unconstitutional. The President of the Brazilian 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 are yet to adopt this universally accepted precautionary principle and the inter-generational equity principle to save the public health of Indians like the Brazilian Court as far as implementation is concerned.[18]  

We submit that India’s Hon’ble Supreme Court and Hon’ble High Courts have consistently expressed their serious concerns regarding exposure to these carcinogenic mineral fibers and have asked the central and state governments to update their laws as per fresh resolution of 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. 

We wish to draw your attention towards the fact that more than 60 countries including 1) Algeria, 2) Egypt, 3) Israel, 4) Mozambique, 5) Slovakia, 6) Argentina, 7) Estonia, 8) Italy, 9) Netherlands, 10) Slovenia, 11) Australia, 12) Finland, 13) Japan, 14) New Caledonia, 15) South Africa, 16) Austria, 17) France, 18) Jordan, 19) New Zealand, 20) Spain, 21) Bahrain, 22) Gabon, 23) South Korea, 24) Norway, 25) Sweden, 26) Belgium, 27) Germany, 28) Kuwait, 29) Oman, 30) Switzerland, 31) Brunei, 32) Gibraltar, 33) Latvia, 34) Poland, 35) Turkey, 36) Bulgaria, 37) Greece, 38) Lithuania, 39) Portugal, 40) United Kingdom, 41) Chile, 42) Honduras, 43) Luxembourg, 44) Qatar, 45) Uruguay, 46) Croatia, 47) Hungary, 48) Macedonia, 49) Romania, 50) Cyprus, 51) Iceland, 52) Malta, 53) Saudi Arabia, 54) Czech Republic, 55) Iraq, 56) Mauritius, 57) Serbia, 58) Denmark, 59) Ireland, 60) Monaco, 61) Nepal and 62) Seychelles have banned asbestos of all kinds because safe and controlled use of asbestos is not possible.

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.

We seek review of all the labour and factory regulations on workplace safety and health and associated regulations to deal with asbestos which is believed to be one of the leading causes  of occupational diseases and related deaths in India. The existing regulations have not been updated in view of fresh ILO resolutions related to asbestos. The labour ministry should develop, approve and issue a code of practice dealing with asbestos. Death may not be immediately visible in the case of exposure to asbestos because of its long incubation period but the fact is that people are still dying from asbestos and additional preventive enforcement options are needed. Most workers remain ignorant about the threats from asbestos-containing materials (ACMs) because there is a general tendency among employers to withhold such vital information from their employees.

We wish to also draw your attention towards the notification of Union Ministry of Labour and Employment dated January 23, 2012 constituting an Advisory Committee of 13 members to prevent exposure to asbestos to workers in pursuance of the judgment of Hon’ble Supreme Court. There are four terms of reference (TOR) of this Advisory Committee. Two of these TORs deal with ‘ILO guidelines’ and ‘fresh resolution passed by ILO”. The reply does not recognize that the ‘fresh resolution passed by ILO’ refers to the above mentioned June 2006 resolution.

This Advisory Committee was set up to implement Hon’ble Supreme Court’s order in the CERC case wherein it took note of the ILO’s resolution pursuant to certain specific directions vide ILO Resolution of 2006 introducing a ban on all mining, manufacture, recycling and use of all forms of asbestos. In compliance of the six specific directions with the order of Hon’ble Supreme Court dated January 27, 1995 in the Writ Petition (Civil) N. 206 of 1986 to maintain the health record of every worker up to minimum period of 40 years from the beginning of the employment for 15 years after the retirement or cessation whichever is later. This has not been done so far. Hon’ble Court directed the Union and state governments in the Consumer Education and Research Centre (CERC) Vs Union of India case “to review the standards of permissible exposure limit value of fibre… in tune with the international standards reducing the permissible limit”.

If Hon’ble Supreme Court’s 23 year old verdict and it six directions are read in the light of the scientific, medical and legal findings at a global level a case emerges for banning the import of all kinds of asbestos by India because human biology is same world over.

In view of the above we seek your urgent intervention to safeguard the health of present and future generation of Indian workers in particular and Indians in general. We will be happy to meet you to share relevant information in this regard.

Thanking you in anticipation.

Warm regards

Dr Gopal Krishna

Ban Asbestos Network of India (BANI)*

Occupational Health India (OHI)

Mb: 08227816731, 09818089660,

E-mail-krishnagreen@gmail.com

Web: www.asbestosfreeindia.org

P.S.: Asbestos free India campaign of Ban Asbestos Network of India (BANI) and Occupational Health India (OHI) has been working for environmental and occupational health justice for last 17 years.

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[1] (1996), Diane Seligsohn, France prohibits use of asbestos 13 July, https://www.newscientist.com/article/mg15120381-200-france-prohibits-use-of-asbestos/ accessed on 4 January 2018

[2] (2004), Barry I. Castleman, Asbestos: Medical and Legal Aspects, Aspen Publishers, 18 November

[3] Chrysotile refers to white asbestos

[4] (2000), European Communities –Measures Affecting Asbestos and Asbestos –containing products, Report of WTO Dispute Settlement Body, p.34, 18 September, https://www.wto.org/english/tratop_e/dispu_e/135r_a_e.pdf accessed on 4 January 2018

[5] (1995), Consumer Education and Research Centre Vs Union of India (1995 AIR 922, 1995 SCC (3) 42), 27 January, http://sci.gov.in/jonew/judis/10927.pdf

[6] Ibid

[7] (2014), Asbestos Related Diseases, Press Information Bureau, Ministry of Health and Family Welfare, Government of India, 21 February, http://pib.nic.in/newsite/PrintRelease.aspx?relid=104105 accessed on January 3, 2018 

[8] Speech of Chairman, Bihar Legislative Council, http://www.youtube.com/watch?v=B9TbemRUkYM accessed 2 January 2018

[9] (2013), M/S U.A.L. Industries Ltd V State Of Bihar, Civil Writ Jurisdiction Case No.9064 of 2013, 19 August

[10] (2017), Reply of Haribhai Parthibhai Chaudhary, Union Minister of State for Mines and Coal in Lo Sabha, 28 December

[11] Ibid

[12] (2017), Order in Writ Petition (Civil). No. 14729 (W) of 2016, 21 July

[13] Ibid

[14] (2009), Case No. H.R.M.P.N0.126/2007, Order of Kerala State Human Rights Commission, January 31

[15] (1998), Case No: 693/30/97-98, Order of National Human Rights Commission

[16] Vision Statement on Environment and Human Health, Union Ministry of Environment, Forest and Climate Change,  www.envfor.nic.in/sites/default/files/visenvhealth.pdfaccessed on January 3, 2018

[17] (2017), Reply of Haribhai Parthibhai Chaudhary, Union Minister of State for Mines and Coal in Lo Sabha, 28 December

[18] (2017), Brazilian Supreme Court Finally Rules on Years Old Case Declaring São Paolo Asbestos Ban Constitutional, 25 August, http://www.asbestosdiseaseawareness.org/archives/44580 accessed on 4 January 2018