To
Shri Narendra Modi
Prime Minister of India
Cabinet Committee on Economic Affairs
Cabinet Committee on Investment & Growth
Date: December 7, 2020
Sub-Implementation of Occupational Safety, Health and Working Conditions Code and Hon'ble Supreme Court's verdict in CERC v Union of India
Sir,
With reference to the First Schedule of Occupational Safety, Health and Working Conditions (OSHWC) Code, 2020 which refers to Industries involving hazardous processes including manufacture, handling and processing of Asbestos and its products, its Third Schedule that lists incurable Asbestosis as a Notifiable Diseases, I salute the memory of noted Gandhian Dr. B. D. Sharma, an ex-IAS Officer and ex-Vice Chancellor of North East Hill University who had filed a writ petition seeking ban on trade, manufacture and use of all kinds of cancer causing asbestos mineral fibers also recognised the hazardous nature of asbestos mineral fiber.
Recollecting his memory, I submit that Hon'ble Supreme Court had passed an order on 24 October, 2008 on his petition seeking ban on asbestos in Writ Petition (C) No. 310 of 2008. The petition was heard by a Chief Justice headed 3-Judge Bench. The order reads: "The petitioner by way of this writ petition seeks prohibition on import of Asbestos into India as it is a major health hazard. According to the petitioner, huge quantity of Asbestos is being imported from other countries causing health problems. The petitioner is at liberty to pursue the matter with the Government/appropriate authority."
This representation is being made pursuant to the Directions of the Hon'ble Supreme Court dated 24.10.2008 passed in Writ Petition (Civil) No. 310 of 2008 whereby prohibition on the import of asbestos into India and implementation of Environment Protection Act, 1986 and the rules framed there under, the Air (Prevention And Control of Pollution) Act, 1981 and the rules framed under them was sought. I am making the submission because Dr. Sharma is no more. He passed away on December 6, 2015. He would have been happy to learn about the OSHWC Code of 2020,albeit in a limited way.
I submit that asbestos is a fibrous mineral of hydrated silicates which can be divided into two groups: amphiboles and serpentine. Admittedly, asbestos including white chrysotile asbestos of serpentine group is hazardous substance. Since 1977, WHO has recognized that all varieties of asbestos, including chrysotile are carcinogenic, causing cancer of the lung or mesothelioma 1986, ILO advised lawmakers, through convention no.162 to have asbestos replaced by less harmful material or technologies. WHO has reaffirmed the carcinogenic effect of chryostile asbestos and called for its elimination in order to eliminate asbestos related diseases. In a study coordinated by J. Peto and published in 1999 found that in six European countries viz. France, Germany, Italy, Switzerland, United Kingdom, nearly 10,000 people died of mesothelioma between 1990-1994. Moreover, it is estimated that during the period 1995-2029 about 200,000 people will die of mesothelioma. 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. Canada in 1998 approached the WTO dispute settlement body to establish a panel to review the decision taken by France. The panel in their report dated 18.09.2000, “European communities- measure affecting asbestos and asbestos- containing products, 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. This was consistent with Hon'ble Supreme Court's verdict dated 27 January, 1995 in Consumer Education Resource Centre v Union of India. It is therefore submitted that in view of the known risk of asbestos, its import should be banned under Article XX (b) of GATT read with Article 21 of the Indian constitution.
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 is0.70). According to EC, the number of cases of cancer increases proportionally with the increase of imports of asbestos into each country. It is important to note about 955 of all asbestos used in the world is chrysotile. (Page 34)
I submit that India is a major importer of asbestos and with the knowledge that the increase in import increases the risk to cancer, import of asbestos should be banned. The co-relation between import of asbestos with the increase of import is reiterated in the panel report (Para 3.109).
I submit that the workers in India work up to their knees in asbestos powder, breaking up asbestos cement roofs and pipes. Indian homes are often built of asbestos cement roofs, and people cut their own windows and doorways. No public or private building is free of asbestos fibers. Research is showing asbestos epidemics across the globe even in countries where it is currently banned, as the consequence of past exposure, with estimated deaths reaching 30 per day. Since 1984, environmental monitoring and health surveys have led to in-depth studies in asbestos based industries in India, highlighting an occupationally vulnerable worker population. It was noticed that the workers occupationally exposed to asbestos have a maximum impairment in their pulmonary function test. Besides the consumers, workers employed in the cement-asbestos factories also suffer from the exposure to asbestos. Its incubation period is long, it takes as long as 25 to 30 years for the fibers to make their presence felt in the human body but by then it is incurable. In the developed countries, insurance companies have stopped covering workers employed in asbestos factories and mines.
I submit that it was in view of the deleterious effect of asbestos mining on the health of the workers, the Central Government ordered the State Governments in 1986 not to grant any new mining lease for asbestos (including chrysotile variety) in the country. In June 1993, the Central Government stopped the renewal of existing mining leases of asbestos. The ban was imposed in phases in 1986 and 1993 but not on its use, manufacture, export and import. White chrysotile asbestos is being imported from countries like Russia, Brazil and China. In addition to cement, it is also used in brakes, clutch linings, and gaskets in motor cars, as well as insulation and fireproofing in buildings and warships. It is used in electrical distribution systems, and domestic products such as ironing boards. It is also used asbestos cement pipes used for water supply in the country.
I submit that the International Labour Organization said in January 2006 that asbestos is still the No.1 carcinogen in the world in its report titled "Asbestos: the iron grip of latency." It adds, the dumping of asbestos on developing countries will "prove to be a health time bomb in these countries in 20 to 30 years' time." Director of the ILO In Focus Programme Safe Work, issued this report. While white chrysotile asbestos mining is currently banned in India, its import, export or use in manufacturing is permitted.
I wish to also draw your immediate attention towards the announcement dated May 19, 2020 by Johnson & Johnson, a multinational company headquartered in New Brunswick, New Jersey, USA stating that it will discontinue sale of its Talcum Powder products in North America. This announcement is aimed at safeguarding the health of residents and citizens of North America but not the residents and citizens of India. Such doublespeak and double standard in matters of public health in general and children’s health in particular merits urgent intervention of the CDSCO. (Reference: Statement of Johnson & Johnson, May 19, 2020, https://www.jnj.com/our-company/johnson-johnson-consumer-health-announces-discontinuation-of-talc-based-johnsons-baby-powder-in-u-s-and-canada)
I wish to point out that “the Company will wind down the commercialization of talc-based Johnson’s Baby Powder in the U.S. and Canada in the coming months. Existing inventory will continue to be sold through retailers until it runs out.” The news report titled Johnson & Johnson to End Talc-Based Baby Powder Sales in North America published in The New York Times merits attention as well. (Reference: Tiffany Hsu and Roni Caryn Rabin, May 19, 2020, https://www.nytimes.com/2020/05/19/business/johnson-baby-powder-sales-stopped.html).
I submit that a study titled "Asbestos in commercial Indian talc" published in the American Journal of Industrial Medicine states that “this product study of various talcum powders marketed to combat prickly heat, purchased from Indian retailers both over‐the‐counter and online, demonstrates the ease of general population access to such products and the potential for significant exposure to asbestos. The analytical results of this study confirm that asbestos exposure of the Indian and potentially greater Southeast Asian populations is not limited to traditional occupational settings.” The findings of this study “imply that the asbestos‐related medical and public health implications to consider will need to extend to persons of both genders and all ages among this population group. This study's confirmation of an underappreciated source of asbestos exposure, through personal care products, also highlights the risk that anyone within breathing range of these aerosolizeable, contaminated, talcum products incurs.” The authors of the study observe, “"Until asbestos is also viewed as a hazard in India and banned, there will still be considerable risk to health." There is a need to identify the source of their talc supply as well. (Reference: : Fitzgerald S, Harty E, Joshi TK, Frank AL. Asbestos in commercial indian talc. American Journal of Industrial Medicine. 2019; 1‐8. https://doi.org/10.1002/ajim.22969 )
I submit that Word Health Organisation (WHO)’s International Agency for Cancer Research (IARC) has recognized presence of asbestos in talcum powder. IARC Monograph on the Evaluation of Carcinogenic Risks to Humans on Carbon Black, Titanium Dioxide, and Talc (2010) refers to the presence of asbestos in talcum powder. It also refers to "Use of talc for feminine hygiene". The use of body powder for feminine hygiene can be estimated from the prevalence reported for controls in case–control studies that investigated the association between the use of cosmetic talc for feminine hygiene and the risk for ovarian cancer. It refers to exposure to respirable dust during the use of talcum powders on the face, body and babies. Talc is used as a surface lubricant on the majority of condoms manufactured; contact with condoms may also represent a direct means of exposure of the female genital tract to talc. Exposure to talc can also occur during surgical procedures when using powdered gloves. Talc particles were observed in the navels of small children, in the testes, on the vocal cords, in the urinary bladder tract and after removal of varicous veins. Besides this the Food Chemical Codex (2003) provides specifications for food-grade talc, including the statement that “talc derived from deposits that are known to contain associated asbestos is not food grade.” Under the voluntary guidelines initiated in 1976, the Cosmetic, Toiletry, and Fragrances Association stated that all cosmetic talc should contain at least 90% platy talc (hydrated magnesium silicate) that is free from detectable amounts of fibrous, asbestos minerals. Meanwhile, some 67 countries have banned all kinds of asbestos. World Health Organisation (WHO)’s recommendations have established the infectious nature of Covid-19, the same WHO has underlined that “All types of asbestos cause lung cancer, mesothelioma, cancer of the larynx and ovary, and asbestosis (fibrosis of the lungs).” (Reference: https://www.who.int/ipcs/assessment/public_health/asbestos/en/ and https://www.who.int/news-room/fact-sheets/detail/asbestos-elimination-of-asbestos-related-diseases)
Fitzgerald S et al observe, “With products of this nature being readily available and appealing to both genders, it is necessary to consider what the potential health risks and burdens of disease are for millions of exposed women of childbearing age and the children for whom they provide care. IARC has confirmed the causal association of asbestos with ovarian cancer and other cancers”.
I submit that the CDSCO must be directed to undertake the enviro-occupational health audit of the workers who handle asbestos laden talcum powder in the manufacturing facilities of talcum powder products in general besides the health audit of the communities who are in the vicinity of such factories and recommend adequate compensation for those who are exposed to the carcinogenic mineral fibers and are suffering from asbestos related diseases. This will be also relevant for assessing the harm which the unsuspecting consumers continue to face. These consumers include all judges, legislators, officials, their children and grandchildren and the residents of India.
Earlier, an investigative report titled “Johnson & Johnson knew for decades that asbestos lurked in its Baby Powder” was published on December, 14, 2018 which too is relevant for protecting the human rights of Indians. The investigation was conducted by Reuters, a 167 year old international news agency headquartered in London. This investigative report is consistent with the findings of a study by India’s Industrial Toxicology Research Centre (IITR), Lucknow, a constituent laboratory of Council of Scientific & Industrial Research (CSIR), Ministry of Science and Technology, Government of India on “Exposure risk to contaminants in pharmaceutical and cosmetic powders” has found that “There are different types of cosmetic powders such as body powder, baby powder, face powder, eye shadow and powdered blush as well as pharmaceutical powders available in the market. Both the sexes of all age groups are using these powders. These are talc - based. Talc is a mineral product and often contaminated with asbestos fibres.”
The aim of the IITR study “was to investigate the safety of such powders being sold in the market, initially by analyzing the asbestos content. Five branded samples of talcum powder were analysed and all were found contaminated with asbestos fibres. Asbestos fibre contamination in these powders ranged from 10.3 – 15.4%. Fibre length study on two samples revealed that asbestos fibres were 22.8 – 34.7%, 48.2 – 55.1% and 17.1 – 22.1% in the range of <10 10="" 20="" and="" m=""> 20µm, respectively. The study indicates risk of human exposure to asbestos through the use of naturally contaminated talcum powder. It is noteworthy that asbestos takes many years to cause asbestosis and carcinogenic malignancies which are irreversible. It also necessitates a regular monitoring and surveillance on all the cosmetic and pharmaceutical powders being marketed for asbestos contamination.” This has been published in the Annual Report Annual Report 2005-2006 of IITR. IITR is accredited by National Accreditation Board for Testing and Calibration Laboratories (NABL) for chemical and biological testing and is recognized for GLP (Good Laboratory Practice) toxicity testing. (Reference: http://www.itrcindia.org/ITRC_Annual_Report_2005-06.pdf )
The investigation by Reuters corroborates the findings of IITR. This recent investigation was undertaken in the wake of three verdicts in New Jersey, California and St. Louis awarding compensation to plaintiffs who blamed asbestos-tainted Johnson & Johnson talc products for their mesothelioma, a type of cancer that develops from the thin layer of tissue that covers many of the internal organs. The connection between asbestos exposure and mesothelioma was discovered in the 1970s. The third verdict was a watershed in in St. Louis: The 22 plaintiffs were the first to succeed with a claim that asbestos-tainted Baby Powder and Shower to Shower talc, a longtime brand the company sold in 2012 that caused ovarian cancer, which is much more common than mesothelioma. The jury awarded them $4.69 billion in damages. Most of the talc cases have been brought by women with ovarian cancer who say they regularly used Johnson and Johnson talc products as a perineal antiperspirant and deodorant. The inclusion of ovarian cancer besides mesothelioma has broadened the potential liability of Johnson & Johnson, a 132 year old multinational medical devices, pharmaceutical and consumer packaged goods manufacturing company headquartered in New Brunswick, New Jersey, USA.
Earlier, British Medical Journal (BMJ) published an article titled “Jury awards $4.7bn damages against Johnson & Johnson in talcum cancer case” published in the renowned British Medical Journal (BMJ). As per BMJ’s article, “More than 9000 former US talcum customers have lodged suits against the company. Most claim damages for ovarian cancer, but some allege that using the product led them to develop mesothelioma. The award is by far the biggest yet against Johnson and Johnson in litigation relating to talcum powder and the first case in which plaintiffs alleged that asbestos in talcum powder caused their disease. The verdict was handed down in the Circuit Court of the City of St. Louis. ((Reference: BMJ 2018; 362 doi: https://doi.org/10.1136/bmj.k3135)
I submit that this investigative report is of deep relevance for the public health of present and future generation of Indians given the fact that Johnson & Johnson company has admittedly been in India for last 70 years. The company has brought many products in consumer healthcare, medical devices and pharmaceuticals. In 1947, Johnson & Johnson expanded into India, marketing Johnson’s Baby Powder. In September 1957, Johnson & Johnson incorporated as a legal entity in India. The production in its first manufacturing facility began in 1959 at the Johnson & Johnson India plant in Mulund, Mumbai, for Johnson’s Baby Powder and other specialized products. In 1968, the company introduces the Stayfree brand to India. A situation emerged wherein Johnson & Johnson reached almost every household in India.
The Reuters investigative report refers to the findings of Dr. Irving J. Selikoff who had conclusively established a link between the inhalation of asbestos particles and lung-related ailments in the 1960s itself that paved the way for ban on asbestos of all kinds in some 60 countries. Dr. Selikoff was the director of the Environmental and Occupational Health Division of Mount Sinai Hospital in New York. It is significant that Ms Lisa Girion of Reuters has shared the official documents on the basis of which she has made these startling claims in her investigative report.
(Reference: https://www.reuters.com/investigates/special-report/johnsonandjohnson-cancer/)
I submit that in a Terms of Reference dated October 25, 2010 issued by Union Environment & Forests Ministry for a proposed Asbestos cement sheet and accessories manufacturing unit of 1,80,000 Tonnes Per Annum capacity at Narsimharaopalem Village, Veerulupadu Tehsil, Krishna District, Andhra Pradesh by M/s Sahyadri Industries Limited made reference to "talc and chrysotile”.
Prior to the Reuters report, a 2014 paper published in the International Journal of Occupational and Environmental Health titled "Asbestos in commercial cosmetic talcum powder as a cause of mesothelioma in women" by Ronald E Gordon et al concluded "we found that a specific brand of talcum powder contained identifiable asbestos fibers with the potential to be released into the air and inhaled during normal personal talcum powder application. We also found that asbestos fibers consistent with those found in the same cosmetic talc product were present in the lungs and lymph node tissues of a woman who used this brand of talc powder and developed and died from mesothelioma. This study was published in October 2014. (Reference: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4164883/)
I submit that the investigation by Reuters reveals that “Johnson & Johnson developed a strategy in the 1970s to deal with a growing volume of research showing that talc miners had elevated rates of lung disease and cancer: Promote the positive, challenge the negative. That approach was summed up by a J&J applied research director in a “strictly confidential” March 3, 1975, memo to managers of the baby products division, which used the talc in J&J’s signature Baby Powder. Its approach reads: “Our current posture with respect to the sponsorship of talc safety studies has been to initiate studies only as dictated by confrontation,” the memo said. “This philosophy, so far, has allowed us to neutralize or hold in check data already generated by investigators who question the safety of talc.” It reveals that scientific ghostwriters have been hired for long to hide evidence of “cancer concern associated with exposure to talc.” Based on an Italian study, one such ghost authored article that appeared in the Journal of Occupational and Environmental Medicine, in 1976 found no mesothelioma, the signature cancer of asbestos exposure. The Italian study in question has been updated three times – in 1979, 2003 and 2017 – “confirming the lack of association between exposure to asbestos-free talc, lung cancer and mesothelioma.” The investigative underlines that Johnson & Johnson got a lot of mileage out of the study. It was cited in a review article titled “The Biology of Talc,” published Nov. 1, 1976, in the British Journal of Industrial Medicine.
(Reference: https://pdfs.semanticscholar.org/77df/7030e57e91ee73c8e313d6b54e0ea0b7c498.pdf)
In addition to dozens of published studies, the review cited unpublished research, including one experiment that used a doll as a proxy for infants and that supported the company’s position on the safety of talc. It didn’t disclose that Johnson & Johnson had commissioned the unpublished research. The author of the review article concluded that the “concern that has been expressed about the possible health hazard from consumer exposure to cosmetic talc is unwarranted … There is no evidence that its normal use poses a hazard to health.” The author was Hildick-Smith, the Johnson & Johnson physician executive who had overseen the Italian study and played a key role in the company’s talc safety research. The article did not disclose his Johnson & Johnson connection, identifying him only as a Rutgers University Clinical Assistant Professor of Pediatrics.
In a related event, I was a panelist at a Round Table Conference on Issues Related to Asbestos Use in India held at India International Centre, New Delhi on December 21, 2009, wherein Dr Iqbal Ahmad, a scientist from IITR, Lucknow said that there are many different sources of asbestos exposures which need to be looked at. He identified talc (powder) as a major source which has asbestos contamination and exposes a large section of population, especially children and women. Talc is used in several industries as raw material. He said that we do have numbers of talc based cosmetic powders in India. China is the largest producer of talc. Some 47 companies which used to procure Chinese talc powder had to withdraw their product from market in South Korea due to high asbestos contamination.
I submit that your intervention will be germane in the light of the judgment of Hon’ble Supreme Court in Consumer Education and Research Centre (CERC) Vs Union of India (1995 AIR 922, 1995 SCC (3) 42) that recognised right to health as part of right to life and had directed central and state governments to revise their law related asbestos in keeping with fresh resolutions of International Labour Organisation (ILO). ILO’s asbestos related resolution of June 2006 is relevant in this regard (Reference: https://www.ilo.org/safework/info/standards-and-instruments/WCMS_108556/lang--en/index.htm . The ILO resolution was followed by a joint publication of WHO and ILO titled "Outline for the Development of National Programmes for Elimination of Asbestos-Related Diseases" published in December 2007. It creates a logical compulsion for urgent remedial action. (Reference: https://www.ilo.org/global/topics/safety-and-health-at-work/resources-library/publications/WCMS_108555/lang--en/index.htm)
I submit that instead of waiting for the coo withdraw its asbestos-laden talcum powder products-both baby powder and adult powder, the CDSCO must be asked to prevent preventable diseases and deaths by banning these products with immediate effect.
I submit that over the past decades, drastic reductions in import tariffs on raw asbestos and asbestos-containing products have led to an expansion of the asbestos industry in India and increasing competition for small Indian-owned mining companies. This has raised serious concern that India will become a dumping ground for asbestos as industrialized countries ban its use. In addition to mining, milling, and manufacturing industries, workers in India are exposed to asbestos in the ship-breaking industry. Half of the nearly 700 ships that are scrapped worldwide each year are broken-down in India. The ship-breaking industry is centered in Alang in the state of Gujarat and employs 35,00040,000 workers. Each ship contains about 7.5 tons of asbestos, which is then resold to manufacture insulation and roofing materials.
Given the fact that India is a major importer of asbestos the only way to control emission of asbestos is to prevent import of asbestos and its products.
It is also noteworthy that the Hon'ble Supreme Court has examined the issue of how safe methods of use of asbestos could be implemented. However, the directions given by the Hon'ble Court have not been followed. Hence, it is clear that it is not possible to monitor the implementation of the guidelines.
The undersigned seeks a ban on the import of asbestos which is causing incalculable harm as the Central Government has the power to impose the ban.
C. The issues involved in the present representation are as under:
(a) Right to good health
(i) 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. It is important to mention here that the Honble Supreme Court in Consumer Education and Research Centre and others Vs. Union of India in a case related to asbestos have 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. 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.
The Hon'ble Court has observed 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.
It is also submitted that Article 21 of the Indian Constitution has been interpreted in M.C.Mehta Vs. UOI, (1999) 6 SCC 549 to include right to good health as a fundamental right. It is submitted that the Central Government is aware of the risk and consequence to the exposure of asbestos. The import of asbestos can easily be regulated since the import of asbestos leads to various health hazards to the labourers involved in the import of asbestos. In view of this the import of asbestos should be banned.
(b) Right to clean environment.
Article 21 of the Constitution has been interpreted to mean something more than survival or animal existence. It means right to live with dignity. The right to an environment free from smoke and pollution follows from the quality of life, which is inherent in the guarantee under article 21. Therefore the import of asbestos should be banned as it affects the environment. The provisions under the various enactments relating to and dealing with import, emission standards etc. should be implemented so that Article 21 is not violated.
(c) Implementation of the Act, Rules and Regulations.
The Rules and restrictions are incapable of implementation. It is submitted that the Government has the powers to ban import and production of asbestos under Section 3 of the Environment Protection ACT. The authorities have power under Section 31A of the Air Prevention and Control of Pollution act, 1981 to issue directions under this section for closure, prohibition or regulation of any industry, operation or process. It is further submitted that the authorities under the Air Act can prohibit production and import of asbestos. It is therefore a fit case where powers of ban of import ought to be exercised.
(d) International Treaties and Covenants.
(i) India is a signatory to various international treaties and covenants and being a party to WTO and GATT, it is obligated to fulfill its trans-national obligations. For the purpose of giving effect to the international treaties, it can exercise its power under Article 253 which reads as under:-
“Art.253 - Notwithstanding anything in the foregoing provisions of the this chapter, Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
(ii) Article 253 is also in conformity with the object declared by Art.51(c). The courts have used international treaties, conventions to interpret fundamental rights. India, as a signatory to WTO and GATT, is expected to follow the said guidelines. In State of Punjab Vs..Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26, the court opined as follows:-
“Globalization has brought a radical change in the economic and social landscape of the country. Its impact on Constitution and constitutionalism is significant. As and when the occasion arise the interface between the globalization and constitutionalism whether from economic perspective or human rights perspective is required to be seriously gone into. Often the economic changes in the country relating to regulation of markets brought about competition law leading to substantial erosion of administrative law by private law are matters which eventually would fall for our decisions. The Court will have to take a realistic view in interpretation of Constitution having regard to the changing economic scenario.
(iii) About 70 countries in the world have banned asbestos. It is submitted that with globalization and being aware of the risk of asbestos, India should ban import of asbestos. This would be in conformity of the growing trend to ban use of asbestos.
(iv) Since India is a signatory to GATT and WTO therefore it is expected to follow the said guidelines. GATT Article XX provides as under-
“ General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(a) necessary to protect public morals;
(b) necessary to protect human, animal or plant life or health;
(c) …
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(v) It is submitted that import of asbestos can be banned by reading GATT general exception XX (b) with Article 21 of the COnstitution. The panel in United States restriction on imports of Tuna stated;
Article XX (b) allows each contracting party to set its own human, animal or plant life or health standards. The conditions set out in Article XX (b) which limit resort to this exception, namely that the measure must be necessary and not constitute a means of arbitrary or unjustifiable discrimination or disguised restriction on international trade... (Page 122)
In view of the foregoing paragraphs, it is respectfully submitted that the undersigned has a very good case at merit and a case of banning the import of asbestos has been made out. The import of asbestos can easily be regulated since the import of asbestos leads to various health hazards to the labourers involved in the import of asbestos and therefore it is prayed that the import of asbestos should be banned in India. Now that asbestos laden talcum powder of Johnson & Johnson has been banned in the entire North America, there is logical compulsion for it to be banned in India as well because human biology is same everywhere. Both the steps are required in supreme national interest to safeguard the health of present and future generations.
I will be happy to submit more information in this regard.
Thanking you in anticipation
Warm Regards
Advocate Gopal Krishna
E-mail:krishnaruhani@gmail.com
