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Sterlite looks to Supreme Court for a vaccine

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

After 10 writ petitions, 42 days of staggered hearing and 815 pages-Sterlite has Nowhere to Go. Except to Supreme Court. Of course, it is the place where it truly belongs anyway. ‘It is an unmitigated disaster to the industrial climate in Tamil Nadu as inclination to set up new industries may have received a setback’, observed an industrialist, in anonymity. This, even while the environment activists went to town celebrating the orders dt.18th Aug,2020  delivered by justices T S Sivagnanam and Ms. Bhavani Subbaroyan, dismissing all the writ petitions filed by Vedanta seeking to re-open the closed Sterlite factory. as of May 28,2018.

Who won and who lost? If you ask Associate Justice Antonin Scalia of US Supreme Court, he would have said, “I don’t care who wins or who loses. I only pay down the principles for application in future.” But that is not the case here. For Vedanta, Sterlite was ordered to be closed in May, 2018 and all their efforts to reopen have come to naught till now. Sterlite has now nowhere to Go. Except to Supreme Court. That may be Sterlite’s last port of call, as it were.

In the meanwhile, just for the record,  India which was a major exporter of copper, around 27-33%- is now a net importer at 6%. To add insult to injury, Pakistan’s exports of copper to China have escalated by a good 400% in value, since May, 2018. The timeline is very significant to note.

Sterlite has had a chequered history. They tried to set up the copper smelting plant in Gujarat, and then in Goa. Amidst opposition they shifted to Ratnagiri in Maharashtra. They invested 200 crores to begin with, and obtained ‘all clearances to go on stream’ from the Maharashtra Government. There were protests thereto, even as Tamil Nadu Government rolled out a red carpet welcoming Vedanta to Thoothukodi. The plant got clearances from the Union Ministry of Environment and Forests on 16th Jan,  1995 and set up base in TN.

Huge sums were invested. Thousands got employment opportunities. Satelite towns and industrial establishments were born. There were complaints emanating that the environmental hazards from the running of the copper smelting plant were real and the plant posed serious danger to lives of workers and villagers around, besides polluting the waters in the vicinity. PILs were filed since 1996 and they got tagged together to be heard and decided on 28th Sept,2010. The Division Bench ruled that the material  on record did satisfy them on the harmful impact and therefore they revoked the licences for the running of the unit.

Thereafter, of course, it has been an uphill battle for Sterlite visiting one hierarchial court after another and being taken to, as well. It does not take much for any issue  to get political in TN and Sterlite with public protests gained traction, even as conspiracy stories of alien support also made the rounds. The environment got as vitiated as the allegations against the company for what they were  doing to the atmosphere.

There were several forays to the Principal Seat of Madras High Court, Madurai Bench (one to dismantle the plant, is still awaiting consideration) and Supreme Court, not to forget the out-patient visits to the State and National Green Tribunals. This was in the wake of Sterlite protests resulting  in tragic deaths of 13 people and injuries to 102 in police firing, it is now subject matter of  a CBI enquiry. On May 28,2018, the Sterlite plant came to be shut and it has been a failing  attempt thereafter to reopen. And on 15th Dec,2018 when the National  Green Tribunal gave the green signal to Sterlite to reopen by nixing the orders of the TN Pollution Control Board et al, it seemed as if calmer waters were around. Alas not to be.

The TNPCB and State of TN challenged the orders of NGT as being ‘without jurisdiction”. Accepting it, the top court by orders dt.19th Feb,2019 held that challenges before NGT were not ‘maintainable’. It said that since the re-opening orders were set aside on technical premises, the Madras High Court may give it an early hearing, if requested.

It is thereafter that the 10 writ petitions came to filed and several intervenors joined in and hearing went on till Jan,8, 2020. According to the learned judges they had actually chosen March,12,2020 as possible date for delivering their verdict. But the Pandemic skewed the time line to take it away and ‘by dictating the orders over phone to three stenographers they were able to finalise the 815 pages verdict  by 17th Aug to deliver the much anticipated verdict on 18th Aug,2020’. A saga has ended? Sorry, it has actually just begun, so to say.

If the orders dt.19th Feb,2020 were a surprise the present order of the Madras High Court is even more so. The learned judges of the top court who usually are more than willing to assume jurisdiction chose to abdicate by playing coy and reticent on the limits to their remit. As for the Madras  High Court they appear to have played safe in refusing to be bitten by the expansionist visions of Sterlite, on legally sustainable foundations.

The orders dt.15th Dec,2018 of the NGT was not wrong on merits. It was erroneous in ‘jurisdiction’. A comparative reading of the NGT order which also went into the multiple challenges as in the 10 writ petitions would suggest that there was a lot to commend it. But, the learned judges of the Madras High Court were not persuaded to see it that way. And the orders dt.19th Feb,2020 from the Supreme Court did not set aside the NGT order on merits. It did not approve it either, to be fair.

Sterlite is now a hot potato. No government would be willing to bell the cat. With elections due in 2021, the matter rightly goes where it belongs. The Supreme Court would surely be unconcerned with the vitiated environment or the politicization of the imbroglio or the conspiracy stories galore. Truth is that Sterlite is not a classic example for either industrialization or pollution. It has too many potions mixing in it and it may be for the Supreme Court, yet again, to sort out the legal quagmire. Possibly, once and for  all and that is the silver lining over the copper smelting plant.

All eyes would be on the Supreme Court and the State of TN may be relieved that they may not have to deal with  reopening of the plant, for now, in these pandemic times. Sterlite may well be hoping that in a few months, Supreme Court may after all come up with a vaccine, for all other cures have proved to be ineffective.

(Narasimhan Vijayaraghavan- Author is practicing advocate in the Madras High Court)   

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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