KALYANESHWARI Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 32 of the Constitution of India has been filed by the petitioner Kalyaneshwari (a registered Society), through its Chairman, with a prayer that a writ of mandamus be issued directing the Union of India and other respondent-States to immediately ban all uses of asbestos in any manner whatsoever; further that a committee of eminent specialists be constituted to frame a scheme for identification and certification of the workers/victims suffering from asbestosis or other asbestos related diseases or cancer. The petitioner also prayed that the respective Governments should be directed to identify the workers/victims in the respective States and Union Territories and to provide them due treatment as well as to take measures to prevent harmful effects of asbestos in the factories or establishments where such activity is being carried out and also to initiate criminal proceedings against all the responsible persons including the owners of such factories, organizations and associations for infringing the right to life of the asbestos victims.

(2.) The above writs/directions have been prayed for on the premise that petitioner, Kalyaneshwari, is a non-governmental organization, registered under the Societies Registration Act XXI of 1860. It is a voluntary organization allegedly promoted to serve the general public without distinction of caste or religion and working for the protection of consumers' interest. This Court in the case of Consumer Education and Research Centre v. Union of India, 1995 3 SCC 42 accepted the well established adverse effects of asbestos including the risk beyond the work place and held as under:

(3.) The petitioner alleges that developed countries all over the world have drastically reduced the manufacture of asbestos and some of them have even banned different types of asbestos. In India, the use of this carcinogenic material is increasing every year approximately at the rate of 12% and the petitioner drew attention of the concerned authorities towards this issue and requested them to take stringent actions, but to no effect. The World Trade Organisation considered this aspect in the EC-Asbestos case, [WT/DS135/ABR] adopted on 5th April, 2001 where its appellate body observed that available scientific data reveals that a high mortality rate persists despite the so called 'safe' use of Chrysolite Asbestos. Surveys carried out more than 30 years after the introduction of controlled use policy in United Kingdom indicate a significant increase in deaths from Lung Cancer and Mesothelioma, not only among the workers but even to the families residing nearby such plants. Citing the example of some countries and the measures being taken by different organizations, request was made for banning import, manufacture and use of asbestos and it is averred that 'controlled use' is hardly workable. It is also averred by the petitioner that in most parts of the world, there was a drastic reduction in manufacture and use of asbestos. In fact, efforts are being made to ban on use of asbestos in any form. On the contrary, in India, use of asbestos was permitted indiscriminately on the premise that its controlled use is absolutely safe. There is a large number of victims in India who are suffering from various effects of asbestos in one form or the other. The petitioner claims to have identified five hundred plus victims from five different States, namely, West Bengal, Rajasthan, Jharkhand, Andhra Pradesh and Tamil Nadu. The petitioner claims that in order to find out the exact health scenario of asbestos workers, it got 14 direct workers of an asbestos unit examined by qualified occupational health doctors and the results were shocking, inasmuch as 13 workers were suffering from asbestosis with five workers being in advanced stage. Though these workers are covered under State ESI Scheme, no proper and adequate treatment is being provided to them. Thousands of poor and ignorant people in Udaipur District in Rajasthan were engaged in asbestos mining before the Ministry of Mines decided in the year 1996 not to issue or renew any asbestos mining licenses in India. Still today, some of them are engaged in illegal mining, which they do at the instance of local asbestos products manufacturers. It is also averred by the petitioner that there is complete failure on the part of the manufacturers in providing safety equipments to workers, regular health check-up, monitoring air borne dust and maintaining health register of the workmen. The petitioner also claims to have already documented more than 500 victims suffering from asbestos related diseases from the above-noted five States and, upon examination by well-known chest specialists, they have been identified as suffering from such diseases. The cost of the treatment is quite high. First, no compensation has been paid to these victims and second, even if some compensation was paid it was too meagre to meet the expenses. All these victims are suffering for no fault of theirs but due to exposure to asbestos over which, they hardly have any control. There is no law in place which directs payment of compensation to such victims. No medical records are being maintained to regulate the treatment of victims of Asbestosis. The carcinogenic properties of asbestos including Chrysotile or White Asbestos, are well-established and the same is a universally accepted fact. Despite overwhelming evidence, asbestos which has been banned in other countries is still being manufactured, imported and used in India and the Government has failed to take proper action which compelled the petitioner to approach this Court by filing the present Writ Petition in larger public interest as there is apparent violation of Articles 14 and 21 of the Constitution of India.