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Preliminary comments on "Hazardous and Other Wastes (Management& Transboundary Movement) Amendment Rules, 2019

Written By BiharWatch on Monday, June 03, 2019 | 11:32 PM

  • The Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 is legally flawed and suffers from poverty of imagination for environmental protection because total prohibition on import into the country is is confined only to "Solid plastic waste". The pre-existing Section 2 (2) of the Plastic Waste Management (Amendment) Rules, 2018 had exempted "export oriented units or units in special economic zones,notified by the Central Government, manufacturing their products against an order for export". In a limited way it gives an impression that it rectifies the error which was introduced through Plastic Waste Management (Amendment) Rules, 2018 by diluting the Plastic Waste Management Rules, 2016 under the influence foreign and Indian plastic wastetraders. It does not address the ongoing Transboundary Movement of hazardous waste within the territory of India. The fact remains even this amendment should have been done in the Plastic Waste Management (Amendment) Rules, 2018. These amendments required wider public publication before its notification. 
  • The reference to "Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016" is noteworthy because these Rules define “import”, which means "bringing into India from a place outside India" and “importer” which means "an occupier or any person who imports hazardous and other waste". As per this Rules, “transboundary movement” means any movement of hazardous or other wastes form an area under the jurisdiction of one country to or through an area under the jurisdiction of another country or to or through an area not under the jurisdiction of any country, provided that at least two countries are involved in the movement. It reveals that "transboundary movement" of hazardous has become part of ministry's sound environmental management approach. This term was introduced in 2008 apparently under the influence of hazardous waste traders when the pre-existing Hazardous WasteRules were amended. This term has been lifted from UN’s Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal. 
  • It is contrary to the UN's Basel Convention which aims “to minimize the generation of hazardous wastes in terms of quantity and hazardousness; to dispose of them as close to the source of generation as possible; to reduce the transboundry movement of hazardous wastes.” It is quite evident that the new Rules are contrary to the objective of the UN Convention to which India is a party.  Basel Convention was made part of its order by Supreme Court of India due to alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage, as a result thereof, to the environment, flora and fauna, health of animals and human beings. The Court took cognizance of violation of Article 14 and 21 of the Constitution of India.  
  • Chapter III of the Rules deals with "import and export of hazardous and other wastes". Clause 11 of the 2016 Rules provides that "The Ministry of Environment, Forest and Climate Change shall be the nodal Ministry to deal with the transboundary movement of the hazardous wastes in accordance with the provisions of these rules." Clause 12 (2) reads: "The import of hazardous and other wastes form any country shall be permitted only for the recycling or recovery or reuse." Such permission for import of hazardous waste for "recycling or recovery or reuse" is an attempt to define waste as non-waste. This is an act designed to re-define end-of-life product as non-waste. It is akin to defining waste as non-new good.  It is an exercise in linguistic corruption. This has apparently been done to pander to the interests of international and national hazardous waste traders. Clause 13 (1) reads:  The import and export of the hazardous and other wastes specified in Schedule III, shall be regulated in accordance with the conditions laid down in the said Schedule.  
  • Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 reveals that trade in hazardous waste is happening in a business as usual manner.   
  • The inclusion of the provision of "importing back" defective "Electrical and electronic assemblies and components manufactured in and exported from India, if found defective" within a year of export seems to be happening under the influence foreign companies and countries. In the absence of robust regulatory mechanism in this regard, this provision can be exploited by unscrupulous traders in electrical and electronic assemblies and components. CAG must audit its implementation at the earliest opportunity. 
  • This provision of Hazardous and Other Wastes (Management & Transboundary Movement) Amendment Rules, 2019 must be read with the circular of Central Pollution Control Board (CPCB) dated November 2, 2018 sent to all State Pollution Control Boards (SPCBs) on the subject of "Directions Under Section 18(1)(B) of The Water (Prevention & Control of Pollution) Act, 1974 And The Air (Prevention & Control of Pollution) Act, 1981 Regarding Streamlining Of Consent Mechanism". 
  • This provision about exemption from requirement of consent and authorization also under the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 will be deeply detrimental to the cause of environmental protection and compliance with the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016. Given the fact that under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981, it is for  the State Pollution Control Boards (SPCBs) and Pollution Control Committees (PCCs) of Union Territories which give consent and authorisation under these two Acts, the provision stating that  "environmental surveillance of industries should be on random basis, and SPCBs/PCCs shall evolve mechanism for that" instead of 24X7 environmental surveillance on a regular basis paves the way for very serious disruption of existing regulatory mechanisms. 
  • Such directions have already been implemented in some States who have exempted over 100 categories of industries from Hazardous and Other Wastes(Management & Transboundary Movement) Rules, 2016 and Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981 without waiting for the 2019 Rules to be notified. This is fraught with unprecedented adverse consequences for environmental health and related disease burden. Such disruption is totally unacceptable. 
  • The condition of handing over "hazardous and other wastes generated by such industries" to "authorized actual users, waste collectors or disposal facilities" for availing these exemptions does not inspire even an iota of confidence because "disposal facilities" for hazardous wastes are almost non-existent and hazardous "waste collectors" are simply dumping or incinerating them making environmental problems more complex by making the contaminants invisible.

Gopal Krishna

Press Information Bureau
Government of India

Amendment in Hazardous Waste (Management& Transboundary Movement) Rules, 2016

Dated: 06th March 2019
New Delhi

In order to strengthen the implementation of environmentally sound management of hazardous waste in the country, the Ministry of Environment, Forest and Climate Change has amended the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016 vide notification G.S.R.  G.S.R. XX (E), dated 01 March 2019.

The amendment has been done keeping into consideration the “Ease of Doing Business” and boosting “Make in India” initiative by simplifying the procedures under the Rules, while at the same time upholding the principles of sustainable development and ensuring minimal impact on the environment.

Some of the salient features of the Hazardous and Other Wastes (Management& Transboundary Movement) Amendment Rules, 2019 are as follows:

      1.      Solid plastic waste has been prohibited from import into the country including in Special Economic Zones (SEZ) and by Export Oriented Units (EOU).
      2.      Exporters of silk waste have now been given exemption from requiring permission from the Ministry of Environment, Forest and Climate Change.
      3.      Electrical and electronic assemblies and components manufactured in and exported from India, if found defective can now be imported back into the country, within a year of export, without obtaining permission from the Ministry of Environment, Forest and Climate Change.
      4.      Industries which do not require consent under Water (Prevention and Control of Pollution) Act 1974 and Air (Prevention and Control of Pollution) Act 1981, are now exempted from requiring authorization also under the Hazardous and Other Wastes (Management & Transboundary Movement) Rules, 2016, provided that hazardous and other wastes generated by such industries are handed over to the authorized actual users, waste collectors or disposal facilities.

Ganga river basin aporoach and the fast of Sant Atmabodhananda

Written By BiharWatch on Sunday, May 05, 2019 | 10:41 AM

Notably, NMCG was registered as a society on 12th August 2011 under the Societies Registration Act 1860. It used to act as the implementation arm of National Ganga River Basin Authority(NGRBA) which was constituted under the provisions of the Environment (Protection) Act (EPA), 1986 during the tenure of Prime Minister Dr Manmohan Singh. Modi government dissolved  NGRBA with effect from 7th October 2016 and constituted National Council for Rejuvenation, Protection and Management of River Ganga (National Ganga Council) vide notification no. S.O. 3187 (E) dt. 7th October 2016 under EPA 1986.

It envisages five tier structure at national, state and district level to take measures for prevention, control and abatement of environmental pollution in river Ganga and to ensure continuous adequate flow of water so as to rejuvenate the river Ganga. 
The structure is as under 
1. National Ganga Council under chairmanship of Prime Minister of India
2. Empowered Task Force (ETF) on river Ganga under chairmanship of Union Minister of Water Resources, River Development and Ganga Rejuvenation
3. National Mission for Clean Ganga (NMCG)
4. State Ganga Committees and 
5. District Ganga Committees in every specified district abutting river Ganga and its tributaries in the states
NMCG has a two tier management structure and comprises of Governing Council and Executive Committee. Both of them are headed by Director General, NMCG. Executive Committee has been authorized to accord approval for all projects up to Rs 1000 crore. Similar to structure at national level, State Programme Management Groups (SPMGs) acts as implementing arm of State Ganga Committees has been constituted. These institutions attempt to bring all stakeholders on one platform to take a holistic approach towards the task of Ganga cleaning and rejuvenation. 

The Director General of NMCG who met Sant Atmabodhananda on 4th May, 2019 is a Additional Secretary in Government of India. For effective implementation of the projects under the overall supervision of NMCG, the State Level Program Management Groups are headed by officials of the Ganga river States.

It is evident that Modi government abandoned the holistic Ganga river basin approach and adopted a narrow Ganga river approach as if the river is only  a pipeline of water.

What Is Ganga River Basin Approach

While the commercial benefits of damming rivers has been talked about a lot, the in-stream and off stream monetary and non-monetary benefits and advantages of flowing rivers has not been assessed so far. Does basin approach mean undertaking that assessment?

The declaration of Ganga River Basin Authority as part of Third Phase of Ganga Action Plan (GAP-III) in the aftermath of the acknowledgment by the Prime Minister's Office saying, "there is a need to replace the current piecemeal efforts taken up in a fragmented manner in select cities with an integrated approach that sees the river as an ecological entity and addresses issues of quantity in terms of water flows along with issues of quality" under Dr Manmohan Singh was long due. But that positon has been abandoned by Modi government to launch the Fourth Phase of Ganga Action Plan (GAP-IV).

Like the earlier phases of Ganga Action Plan, the fourth phase too has failed. The river basin approach affects the quality of surface water, ground water and the survival of natural flow of the rivers in the basin but it was never adopted in practice. 

The GAP-I, which was to be completed by March 1990 was extended till March, 2000 when it was declared complete but Phase I of the Plan was not yet fully complete and GAP-II which was to be completed in 2001 was extended till December 2008. This too remained incomplete.

The empty official, ceremonial and ornamental status being accorded to Ganga ahead of elections has become routine.
Even the River Basin approach applied to only 79% of Ganga basin, which is in India. It does not include 13 % of Ganga basin that is in Nepal, 4 % in Bangaldesh and 4 % in Tibet, China. It did not factor in  its relationship with the river systems and with the composite Ganga-Brahmputra-Meghna basin.

The question as to how does Ganga river basin approach affect the policies of Industry, Power, Agriculture, Urban Development, Health and Environment by the central government, the governments of eleven states (Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Jharkhand, Madhya Pradesh, NCT of Delhi, Rajasthan, Uttranchal, Uttar Pradesh and West Bengal), the neighboring countries and industry bodies like CII/FICCI/ASSOCHEM/PHCCI is yet to be addressed.

What is the relevance of Ganga River basin approach when the river channel has been amputated from the flood plains besides the amputation of the river channel itself?

The following are the biggest threats to Ganga basin basin which have beenn ignored:-
a. Interlinking of Rivers project, 
b. UP’s Ganga Expressway project, 
c. Uttarakhand’s Bhairon Ghati, Loharinag-Pala, Pala Maneri and Maneri Bhali hydro-projects
d. Some 191 heavily polluting industries in the Ganga basin states 
e. West Bengal’s Farraka Barrage
f. Bihar’s Interlinking of Rivers project or Kosi High Dam 
g. Pollution from “Religious” Activities
h. Corporate funding of political parties

Given the poor track record of the National Ganga Council like National River Conservation Directorate), it would be naïve to believe that the threats will be identified and mitigated. If the Ganga basin approach is indeed adopted then as per Comptroller Auditor General's audit reports, there is a need to strengthen the environmental clearance process emanating which has consistently been weakened. And enthusiasm about mega projects like Ganga Waterway and 'interlinking of rivers' scheme must factor in the fact that Ganga is more important than development and the ecological entity of the river basin is non-negotiable.

What can be done even under current scheme of things is to review and reverse the policies like Indian Energy Policy because they wete formulated when basin approach was not adopted. Consequently, fragmented river valley project specific clearances are given without any considered sensitivity towards the environmental health of the river ecosystem. An environmental audit of all the industrial activities in the Ganga basin is a must because auditing and accounting are inextricably interlinked, the important pre-requisite for effective environmental auditing is sound environmental accounting.

Data on environmental costs and liabilities can be used for better decision making relating to usage of alternative raw materials, consumption of utilities like water and power, choice of processing technology based on environmental cost of treating discharge into water, adverse environmental aspect and impact on flora fauna and human beings and treatment of byproducts.

In the face of limitations encountered by National Water Quality Assessment Authority, one of the immediate need of the basin is to take urgent steps to restore the water quality by seeking Zero tolerance towards hazardous chemicals, waste water and depletion in the natural flow due to uncalled for hydro projects adversely affects the water quality.

Infact like previous governments, Modi government too has failed to appreciate that water quantity, water quality and land building are inherently linked. Depletion of water quantity leads to deterioration of water quality.  Embanking, diverting and damming of rivers prevents rivers to perform its natural function of land building.The entire Indo-Gangetic plains have been built by river's natural geological function. It is evident that economic planning in Ganga basin is against the water cycle-it is unscientific. Those who accept this situation in a business as usual manner are complicit in what has been termed as The Economics of Innocent Fraud.

Through their sacrifices saints like Baba Nagnath, Swami Nigmanand, Prof. G. D. Agarwal (Swami Sanand) and Sant Atmabodhanand are constantly reminding us of the Tamil proverb saying that "Sea begins in the moutains"-water cycle itself is a living entity. Such struggles and sacrifices merits the salute of not only the sons and daughters of Ganga but also of the entire humanity. As long as Ganga's Avira (unimpeded flow) is impeded such struggles must continue in myriad forms to safeguard the natural right of the river for the benefit of present and future generation of humans and non-human living species.

Gopal Krishna

The author is a co-petitioner in National Green Tribunal on the subject of environmental impact of Ganga Waterway project

Scientism, a threat to science

Written By BiharWatch on Tuesday, April 30, 2019 | 4:22 PM

One-time events on earth are outside of science
-Paul Weisz, in Elements of Biology

The most incomprehensible thing about the universe is that it is comprehensible
- Albert Einstein in "Physics and Reality"

Water from rivers which goes to sea is a waste. Is it really so? Is it scientific to argue that water which goes to sea is wasted? A Tamil proverb says, “sea begins in the mountains” capturing centuries old scientific wisdom. Is this proverb and the science of water cycle which is taught in schools incompatible? Are they unscientific? Is any anthropocentric approach scientific?

In an essay titled “The Folly of Scientism” published in The New Atlantis, a journal of Technology and Society, Austin L. Hughes is Carolina Distinguished Professor of Biological Sciences at the University of South Carolina wrote, “A typical scientist seemed to be a person who knew one small corner of the natural world and knew it very well, better than most other human beings living and better even than most who had ever lived. But outside of their circumscribed areas of expertise, scientists would hesitate to express an authoritative opinion.” The idea of reason cannot be equated with science. Those who do so practice scientism and Hughes concludes that like all superstitions, scientism undermines the credibility of science.

Take the case of a nuclear scientist who makes repeated claims without questioning by media that water from rivers which goes to sea is a waste, can such claim be deemed scientific? Will it be deemed so if this very claim is made by a hydrologist or an engineer of any branch? In what circumstances will such claim be considered scientific? Will there ever such situation?

Are claims of benefits from nuclear energy by nuclear scientists scientific? Was the disaster in Fukushima, Japan scientific? What was unscientific about it? 
Likewise eugenics too was promoted as a science for improving the human race by controlling reproduction. As scientific discipline, eugenics is totally been discredited in the academic world. It had also found mention in the report of National Planning Committee of the Indian National Congress headed by Jawaharlal Nehru which was constituted in 1938. Nehru had championed the cause of scientific temper, dams as temples of modern India along with scientific breeding for the birth of a fit human race. In later years, he regretted creation of large dams and referred to it as diseases of gigantism.   
The case of biometrics is illustrative. Biometrics is the science and technology of measuring and statistically analyzing biological data for the purpose of people identification based on supposed uniqueness of biological data (finger print, iris scan, voice print etc).

 The studies after studies show that biometrics as science too is deeply problematic but mass media and policy makers are accepting it unquestionably. The faith in biometric technology is based on a misplaced assumption that are parts of human body that does not age, wither and decay with the passage of time. Basic scientific research on whether or not unique biological characteristics of human beings is reliable under all circumstances of life is largely conspicuous by its absence in India and even elsewhere.

A report “Biometric Recognition: Challenges and Opportunities” of the National Research Council, USA published on 24 September  2010 concluded that the current state of biometrics is ‘inherently fallible’. That is also one of the findings of a five-year study. This study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency.

Another study titled “Experimental Evidence of a Template Aging Effect in Iris Biometrics” supported by the Central Intelligence Agency (CIA), the Biometrics Task Force and the Technical Support Working Group through Army contract has demolished the widely accepted fact that iris biometric systems are not subject to a template aging effect. The study provides evidence of a template aging effect. A “template aging effect” is defined as an increase in the false reject rate with increased elapsed time between the enrollment image and the verification image. The study infers, “We find that a template aging effect does exist. We also consider controlling for factors such as difference in pupil dilation between compared images and the presence of contact lenses, and how these affect template aging, and we use two different algorithms to test our data.”
A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its 1 October 2010 issue observed “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.”

Notwithstanding similar unforeseen consequences government’s faith in science of biometrics remains unshaken. It seems that considerations other than truth have given birth to this faith. The core question here is: there a biological material in the human body that constitutes biometric data which is immortal, ageless and permanent? They who say that it does are guilty of practicing scientism and discrediting genuine science as a discipline. In fact it is a case of display of unscientific temper by implication.

It is noteworthy that these efforts are going in a direction wherein very soon employers are likely to ask for biometric data CD or card instead of asking for conventional bio-data for giving jobs etc. It is likely to lead to discrimination and exclusion. Biometrics is being bulldozed down people’s throat as truth detection technology. In fact right to have citizens’ rights is in the process of being denied for instance, in India if citizens fail to scientifically nay biometrically prove that they are who they claim they are, notwithstanding the unreliability and admitted error rate of the technology.

There is a need for the academia especially from the sciences, Parliament, Supreme Court, state legislatures and High Courts to examine whether or not biometrics provides an established way of fixing identity of Indians as is currently being done through programs like aadhaar number as part of world’s biggest biometric database project.

Take another case. A killer mineral fiber called asbestos about which it has been conclusively established with valid scientific finality that all asbestos including white asbestos causes incurable lung cancer. But India is world’s biggest importer of white asbestos from countries like Russia. This in spite of the fact that all relevant scientific institutions of more than 55 countries including World Health Organisation have recommended that elimination of asbestos use is the only way to prevent incurable diseases like lung cancer because there is no safe and controlled use of white asbestos is possible. But scientific institutions in India like National Institute of Occupational Health, Ahmedabad concluded the contrary because they admittedly were sponsored by the asbestos industry. Doctoring scientific findings of research to meet the requirements of the sponsors of the research is an act of scientism. Indians are not immune to toxic fibers for sure but government chooses to practice scientism.

The molecules of death, called Dioxins were used under the brand name Agent Orange in the US-Vietnam war. The war veterans of both the countries are suffering from the health consequences of the war chemical. The ecosystem and food chain of Vietnam are still to recover from it. Instead of learning from it, the Indian government has proposed some 500 waste incinerators-the dioxins emitting machines- across India in peace time. The support or silence of “institutional science” when such unscientific decisions are taken constitutes scientism.

Scientists learn about how the smallest particles in the world work. This knowledge has been helpful for humanity. But the possibility of widespread and long-term harm from these particles cannot be ruled out and merit adoption of precautionary principle. In Nanomedicine, journal of nanotechnology, the potential for nano-sized particles (which are measured in billionths of a meter) to breach the blood-brain barrier, the tightly knit layers of cells that afford the brain the highest level of protection — from microorganisms, harmful molecules, etc. — in the human body and cause harm has been explored.

While some neuroscientists are purposefully engineering nanoparticles that can cross the blood-brain barrier so as to deliver medicines in a targeted and controlled way directly to diseased parts of the brain.  But the fact remains “nanoparticles designed to cross the BBB constitute a serious threat in the context of combat.” In one instance, a one-year moratorium on such research was imposed.

Scientism refers to the philosophy that treats science as the only means of acquiring knowledge. It espouses the view that only scientific claims are meaningful as if the influence of class division does not matter and as it is politically neutral. These divisions mediate scientific perceptions and practices.

Scientism  is practiced when words like ‘scientific,’ ‘scientifically,’ ‘scientific method’ and ‘scientific temper’ are used for praise, when technical jargons are used deliberately in society at large, when someone is preoccupied with drawing a sharp line between genuine science, the real thing and pseudo-science. It is also practiced with the obsession about explaining the success of science, when answers are sought for questions beyond the scope of sciences and when any inquiry besides the scientific inquiry is denigrated.

Scientism is not only about science it is also about junk science, made to order science and institutional science. The claim about river water going to sea being wasted will certainly fall under of these categories.
Will science ever cover the entire gamut of truth in its domain? Is science the only means of answering questions? Can science itself be deemed truth? Those who claim that it can be deemed so, face the charge of practicing scientism. The fact is that “the reach of scientism exceeds its grasp.”

If an opinion poll shows that a large majority of scientists prefer a particular kind of colour in their bed room, can such preference be deemed “scientific”.

Within all disciplines of science itself, many working scientists know that certain theories of their discipline are either false or absurd. In such a situation all that is within science as a discipline can be deemed scientifically defensible. The history of science shows how certain theories were discarded for good.

Long back DD Kosambi, the noted mathematician and scientists held that science is also history of science because the cumulative nature of science is seen in the fact that every major discovery in science is absorbed into the body of human scientific knowledge, which gets used later on. What is essential is absorbed into the general body of human knowledge, to become technique.  He referred to the freedom of the scientists to undertake research he likes. In a 1952 essay Kosambi wrote, “In 1949, I saw that American scientists and intellectuals were greatly worried about the question of scientific freedom, meaning thereby freedom for the scientist to do what he liked while being paid by big business, war departments, or universities whose funds tended to come more and more from one or the other source. These gentlemen, living in a society where he who pays the piper insists upon calling the tune, did not seem to realize that science was no longer 'independent' as in the days when modern manufacturing production was still expanding…The scientist now is part of a far more closely integrated, tightly exploited, social system…” The political economy of science which was described then remains unchanged in the 21st century.
Science has influenced society, just as society has influenced science. Science is directed at finding patterns of order in the observed data. There is a reciprocal relationship between the two.  Science has altered economic, social and political beliefs and practices. Since its inception, influence of class divisions permeated science both materially and ideologically.

This has affected its structure, development and use. Science is generally kept away from the service of mankind as long as it serves a class interest. It is made available to the people at large only when it benefits this class.

The core issue is how much of science is used for betterment of human conditions and how much of it is directed at destruction of living species and the planetary resources with an ever expanding weapons industry under a military mining industrial big data complex.

As has been the case in the past the path science is taking is being guided by the interest of the dominant class which has externalized human cost and issues of inter-generational ad inter-species equity.

While science faces threat from scientism as it can give result in ‘radical skepticism’, all the scientific disciplines are being undermined by institutional economics and management which have emerged disguises as science of sort.

Wittingly or unwittingly they who identify genuine science with institutional science also practice indefensible scientism. There are structural compulsions for practicing scientism which are rooted in the inequitable social structure which enlightened political intervention alone can alter. How else can the science of keeping mother’s milk poison free for the coming generations take birth?

Gopal Krishna

Canadian Supreme Court fails to peirce the corporate veil of Chevron, denies justice to Ecuadorian communities

Written By BiharWatch on Thursday, April 04, 2019 | 1:26 PM

In a setback to the cause of justice, Supreme Court of Canada's ruling regarding the case of Chevron in the Ecuadorian Amazon has refused to admit the appeals filed by the communities affected by Chevron -formerly Texaco- in the Ecuadorian Amazon. This ruling reinforces corporate impunity by protecting Chevron's Canadian assets. The struggle for access to justice in other foreign jurisdictions remains unfinished.Canada's Supreme Court declined to review a decision that a group of Ecuadorians cannot  go after a Canadian Chevron subsidiary's assets for $9.5 billion pollution judgment.

It means that $9.5 billion Ecuadorian judgment against Chevron Corporation given by a local court in Lago Agrio, Ecuador in 2011 cannot be enforced against Chevron Canada Limited.  In effect, Canadian Supreme Court has upheld the on May 23, 2018 order of the Ontario Court of Appeal that dismissed all claims against Chevron Canada Limited, holding that it is a separate entity from the parent Chevron Corporation with no obligation to the Ecuadorian justice system. Seven judges of the Supreme Court of Canada decided to accept jurisdiction to carry out an enforcement or “exequatur process” in Canada, upholding the legitimacy of the Ecuador Supreme Court´s decision on Chevron in 2015. This decision had brought strong hopes to the indigenous communities gathered in the Union of People Affected by Chevron – Texaco in Ecuador (UDAPT) that justice could be achieved.

Similar arguments has been advanced by Union Carbide Corporation (UCC), currently a subsidiary of Dow Chemicals Company in the Bhopal disaster case. The fact remains Court's accept such arguments in circumstances wherein it does not have the judicial will to pierce through the corporate veil. Subsidiaries of parent companies like Chevron Canada is not an autonomous and independent entity from the parent company Chevron

It is worth remembering that Chevron´s operations in the Amazon deeply and negatively affected the lives of indigenous people, the ecosystem, water and common goods. From 1964 to 1992, the company dumped nearly 65,000 barrels of oil and more than 16 billion gallons of waste water into rivers and lands in the rainforest, affecting the health and livelihoods of over 30,000 indigenous people and peasants from various communities. The atrocious consequences of its activities in Ecuador resulted in the case being known as the “Amazon Chernobyl”. 

In the face of a disaster of this magnitude, UDAPT has been fighting for over 25 years and currently its goal is to achieve the enforcement of the decision of the Ecuadorian Supreme Court, so that the environmental, social and cultural damage caused by the oil company is redressed.

A global network of over 200 organizations, movements, trade unions and communities affected by transnational corporations worldwide, Global Campaign to Reclaim Peoples´ Sovereignty, Dismantle Corporate Power and End Impunity has expressed its disappointment with the decision of the Supreme Court of Canada.  

The decision of the Supreme Court of Canada reveals the character of the legal architecture that protects the transnational corporations. Cases like those of UCC and Chevron case create a logical compulsion for the States to endorse the negotiations for an international binding treaty on transnational corporations and human rights which is consistent with the call for international solidarity with communities affected by Chevron and UCC.

Jindal's waste incineration based power plant, an electoral issue in Delhi's Okhla

Written By BiharWatch on Friday, March 22, 2019 | 9:18 AM

The residents of national capital's Okhla region have turned hazardous Chinese waste incinerator technology being used by Jindal company's power plant into their core electoral issue in the upcoming parliamentary elections.

As part of ongoing protests since March 2005, a public march and rally is scheduled to be held from New Friends Colony market at 10:00 AM on March 23 and march down Mathura Road to the Indraprastha Apollo Hospital. The residents and environmental groups have been demanding shut down of the plant which has engulfed this region of the national capital into a major public health crisis.  

Notably, in September 2018 the National Green Tribunal was told by a joint inspection committee of Central Pollution Control Board (CPCB) and the Delhi Pollution Control Committee (DPCC) that the Okhla Waste-to-Energy plant and similar power plants at Delhi's Ghazipur and Narela-Bawana are not compliant with emission standards.

These plants are monuments of environmental lawlessness in the national capital. They are routinely burning biomass but Delhi Government and Central Goverment continues to muslead citizens and media by saying that biomass burning in Punjab and Hariyana is responsible for air pollution load in the national capital. 
Emissions problems at Okhla are compounded by the fact that the plant is situated in a thickly populated part of south Delhi surrounded by the colonies of Sukhdev Vihar, Ishwar Nagar, New Friends Colony, Jasola, Sarita Vihar, Haji Colony and Ghaffar Manzil.
Despite such dangerously polluting conditions, the plant operated by Jindal Ecopolis, has been seeking to expand the plant from its present 16 megawatt capacity to 20 megawatts. This move faced bitter opposition at a fake public hearing of the Delhi Pollution Control Committee held on January 16 January, 2019 from residents and environmental groups like ToxicsWatch Alliance and National Alliance of Peoples' Movements.

Unmindful of such protests Jindal company has erected a third smokestack and operationalized it, severely increasing the pollution load and disease burden in the area. It has aggravated air pollution linked adverse public health effects.

Residents of Okhla have decided to boycott those political parties which has been protecting and promoting installation such tried, tested and failed hazardous technology amidst residential, educational, hospital and research areas in the vicinity of Okhla Bird Sanctuary and water sources.

Constitution Bench of Supreme Court sans Justices Dipak Misra and Sikri all set to hear petitions against colourable Aadhaar Ordinance, Aadhaar Act and UID/Aadhaar scheme

Written By BiharWatch on Friday, March 08, 2019 | 6:56 AM

Verdicts of Justices D Y Chandrachud, Sikri and Protik Prakash Banerjee reveal questionable nature of Aadhaar law and UID/Aadhaar scheme

 ‘He who has been banned is not, in fact, simply set outside the law and made indifferent to it but rather abandoned by it, that is, exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable’
- Giorgio Agamben, Italian philosopher, 1998

“The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.”
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

“The descendants of Mr. Nilekani have perfected the doublespeak of 1984 (George Orwell) if not the Yes Minister and Yes Prime Minister (Jonathan Lynn and Anthony Jay, BBC) where it appears that a given question is being answered, though no information is given.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

“The violations of fundamental rights resulting from the Aadhaar scheme were tested on the touchstone of proportionality. The measures adopted by the respondents fail to satisfy the test of necessity and proportionality for the following reasons:

(a) Under the Aadhaar project, requesting entities can hold the identity information of individuals, for a temporary period. It was admitted by UIDAI that AUAs may store additional information according to their requirement to secure their system. ASAs have also been permitted to store logs of authentication transactions for a specific time period. It has been admitted by UIDAI that it gets the AUA code, ASA code, unique device code and the registered device code used for authentication, and  that UIDAI would know from which device the authentication took place and through which AUA/ASA. Under the Regulations, UIDAI further stores the authentication transaction data. This is in violation of widely recognized data minimisation principles which mandate that data collectors and processors delete personal data records when the purpose for which it has been collected is fulfilled. Moreover, using the meta-data related to the transaction, the location of the authentication can easily be traced using the IP address, which impacts upon the privacy of the individual.

(b) From the verification log, it is possible to locate the places of transactions by an individual in the past five years. It is also possible through the Aadhaar database to track the current location of an individual, even without the verification log. The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database. Any leakage in the verification log poses an additional risk of an individual’s biometric data being vulnerable to unauthorised exploitation by third parties.

(c) The biometric database in the CIDR is accessible to third-party vendors providing biometric search and de-duplication algorithms, since neither the Central Government nor UIDAI have the source code for the deduplication technology which is at the heart of the programme. The source code belongs to a foreign corporation. UIDAI is merely a licensee. Prior to the enactment of the Aadhaar Act, without the consent of individual citizens, UIDAI contracted with L-1 Identity Solutions (the foreign entity which provided the source code for biometric storage) to provide to it any personal information related to any resident of India. This is contrary to the basic requirement that an individual has the right to protect herself by maintaining control over personal information. The protection of the data of 1.2 billion citizens is a question of national security and cannot be subjected to the mere terms and conditions of a normal contract.

(d)Before the enactment of the Aadhaar Act, MOUs signed between UIDAI and Registrars were not contracts within the purview of Article 299 of the Constitution, and therefore, do not cover the acts done by the private entities engaged by the Registrars for enrolment. Since there is no privity of contract between UIDAI and the Enrolling agencies, the activities of the private parties engaged in the process of enrolment before the enactment of the Aadhaar Act have no statutory or legal backing.

(e) Under the Aadhaar architecture, UIDAI is the sole authority which carries out all administrative, adjudicatory, investigative, and monitoring functions of the project. While the Act confers these functions on UIDAI, it does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information. UIDAI also takes no institutional responsibility for verifying whether the data entered and stored in the CIDR is correct and authentic. The task has been delegated to the enrolment agency or the Registrar. Verification of data being entered in the CIDR is a highly sensitive task for which the UIDAI ought to have taken responsibility. The Aadhaar Act is also silent on the liability of UIDAI and its personnel in case of their non-compliance of the provisions of the Act or the regulations.

(f) Section 47 of the Act violates citizens’ right to seek remedies. Under Section 47(1), a court can take cognizance of an offence punishable under the Act only on a complaint made by UIDAI or any officer or person authorised by it. Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy. Further, Section 23(2)(s) of the Act requires UIDAI to establish a grievance redressal mechanism. Making the authority which is administering a project, also responsible for providing a grievance redressal mechanism for grievances arising from the project severely compromises the independence of the grievance redressal body.

(g) While the Act creates a regime of criminal offences and penalties, the absence of an independent regulatory framework renders the Act largely ineffective in dealing with data violations. The architecture of Aadhaar ought to have, but has failed to embody within the law the establishment of an independent monitoring authority (with a hierarchy of regulators), along with the broad principles for data protection. This compromise in the independence of the grievance redressal body impacts upon the possibility and quality of justice being delivered to citizens. In the absence of an independent regulatory and monitoring framework which provides robust safeguards for data protection, the Aadhaar Act cannot pass muster against a challenge on the ground of reasonableness under Article 14.

(h) No substantive provisions, such as those providing data minimization, have been laid down as guiding principles for the oversight mechanism provided under Section 33(2), which permits disclosure of identity information and authentication records in the interest of national security.

(i) Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling. Profiling could be used to predict the emergence of future choices and preferences of individuals. These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. This is contrary to privacy protection norms. Data cannot be used for any purpose other than those that have been approved. While developing an identification system of the magnitude of Aadhaar, security concerns relating to the data of 1.2 billion citizens ought to be addressed. These issues have not been dealt with by the Aadhaar Act. By failing to protect the constitutional rights of citizens, Section 57 violates Articles 14 and 21.

(j) Section 57 is susceptible to be applied to permit commercial exploitation of the data of individuals or to affect their behavioural patterns. Section 57 cannot pass constitutional muster. Since it is manifestly arbitrary, it suffers from overbreadth and violates Article 14.

(k) Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform. If the requirement of Aadhaar is made mandatory for every benefit or service which the government provides, it is impossible to live in contemporary India without Aadhaar. The inclusion of services and benefits in Section 7 is a pre-cursor to the kind of function creep which is inconsistent with the right to informational self-determination. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.

(l) The legitimate aim of the State can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification. The State has failed to demonstrate that a less intrusive measure other than biometric authentication would not subserve its purposes. That the state has been able to insist on an adherence to the Aadhaar scheme without exception is a result of the overbreadth of Section 7.

(m) When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy and poses severe threats due to potential surveillance.

(n) One right cannot be taken away at the behest of the other. The State has failed to satisfy this Court that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.”
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

There is definitely something amiss with the Aadhaar enrolment process if important demographic information such as the name of an applicant’s father, as is the case in hand, can be falsified and even go undetected. Thus, in order to get a wider picture of the entire Aadhaar process, the regulations concerning the Aadhaar scheme could not be allowed to evade scrutiny of this Court.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

“The malady in the present situation is further magnified by looking as to how arbitrary could the process of verification of demographic information of an Aadhaar applicant could be.”
- Justice Protik Prakash Banerjee, Calcutta High Court, January 3, 2019

Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socioeconomic rights of citizens is violative of human dignity and impermissible under our constitutional scheme.
- Order of Justice D Y Chandrachud, Constitution Bench, Supreme Court, 26 September, 2018 (pages 1028-1048)

Both the Aadhaar Act and the Aadhaar Ordinance and the related e-commerce laws are deceptively engineering convergence of mass democracy and totalitarian state by creating human guinea-pigs in the “Aadhaar ecosystem”, the new concentration camps with genocidal implications. Had this been not the case government would either have shown urgency in enacting national asset and data protection law or President of India would have promulgated an Ordinance for it.  

Having failed to get Aadhaar and Other Laws (Amendment) Bill, 2018 passed by Rajya Sabha, ahead of the Election Commission’s imminent announcement for the 17th Lok Sabha elections, President of India promulgated the 12 page long Aadhaar and other laws (Amendment) Ordinance 2019 on March 2, 2019 under Article 123 of the Constitution to make amendments to the Aadhaar Act 2016, Prevention of Money Laundering Act 2005 & Indian Telegraph Act 1885. Notably, Supreme Court has established that ordinance is subject to judicial review. In the case of, Krishna Kumar Singh v State of Bihar, 7-Judge Constitution Bench of the Supreme Court, Justice D. Y. Chandrachud has held that the Ordinance making power does not constitute the President or the Governor into a parallel source of law making or an independent legislative authority.

Contrary to the directions of Supreme Court, the Aadhaar Ordinance has been promulgated in the aftermath of the order of the 5-Judge Constitution Bench of the Supreme Court dated September 26, 2018 authored by Justice A K Sikri (now retired) with the concurrence of three judges in pursuance of the 547 page long unanimous verdict of 9-Judge Constitution Bench of the Supreme Court authored by Justice Dr D.Y. Chandrachud with the concurrence of eight judges in the case regarding constitutional validity of UID/Aadhaar scheme and Aadhaar Act. In his glorious dissenting order, Justice Chandrachud expressed is strong disagreement with Justice Sikri’s order. He has pronounced the scheme and the Aadhaar law a totally unconstitutional.

In the meanwhile, as of March 8, 2019, Supreme Court’s website now refers to the Bench of Justices J Chelameswar, S.A. Bobde, C. Nagappan as the Bench which heard Justice KS Puttaswamy (Retd.) v. Union of India case, the UID/Aadhaar case. The website shows orders by 3-Judge Bench, 9-Judge Bench and 5-Judge Bench. It was the order of this very Justice Chelameswar headed 3-Judge Bench which had referred the case to the Constitution Bench. Justice Chelameswar, the presiding judge of the 3-Judge Bench was part of the 9-Judge Bench constituted by Chief Justice Jagdish Singh Khehar as well but not of the 5-Judge Bench constituted by Chief Justice Dipak Misra.

Disregarding Supreme Court’s majority order has expressly struck down the mandatory use of the UID/Aadhaar database as “unconstitutional”, Aadhaar Ordinance has been promulgated.  At page 434 (of the 567 page long majority order of the Constitution Bench of the Supreme Court), it is stated that UID/Aadhaar “is only an enabling provision which entitles Aadhaar number holder to take the help of Aadhaar for the purpose of establishing his/her identity” in a voluntary way.

ordinances may only be issued where there is a situation of `constitutional necessity’ (see Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1), and giving private companies access to the UID system cannot qualify as constitutional necessity.  It does, however, encourage private entities to collect, and use, the aadhaar number and attendant elements – except only biometric authentication, spreading the number into a range of data bases.

Both the majority order and minority order authored by Justice A K Sikri and Dr. Justice D.Y. Chandrachud respectively raised questions about the constitutionality of the Act. Now in a 25 page long judgment dated January 3, 2019 in Debashis Nandy v. Union of India, Justice Protik Prakash Banerjee of Calcutta High Court has raised serious questions about the Aadhaar Act and UID/Aadhaar scheme and has underlined that Unique Identification Authority of India (UIDAI) and its scheme is “cheating millions in the country who hold their Aadhaar as a concomitant to their identity.”

Justice Banerjee has recorded in the judgement that “The Learned Additional Solicitor General (Kuashik Chanda) alongwith Mr. Mukherjee (Rabi Prosad Mookherjee for Union of India)), submitted that no authentication is made of any material which is declared by an applicant for Aadhar card in his application.” It is well known that the “UIDAI is mandated to issue 12-digit Unique Identification Number called Aadhaar to the residents based on demographic and biometric information submitted by them to the UIDAI at the time of their enrolment into the Aadhaar scheme.” He has underscored that “Aadhaar is not the only means to identification and the question of identification of a person based on which a civil dispute would be decided do not solely rests with his/her Aadhaar identification” in the light of the Supreme Court’s decision.

Calcutta High Court’s verdict records that “Aadhaar (Enrolment and Update) Regulations, 2016 dated September 12, 2016 and issued under the authority of the Chief Executive Authority, UIDAI. Rule 10 of the aforesaid regulation lays down guidelines for submission and verification of information of individuals seeking enrolment. Sub-rule 5 of Rule 10 states that the verification of the enrolment data shall be as provided in Schedule III of the aforesaid regulation. Thus, it becomes necessary to understand the verification process in accordance with the aforesaid schedule.” Schedule III makes provision for recording of “Verification of enrolment information”. It observes that “The demographic information under the head “parent/guardian” and the fields “father’s/mother’s/husband’s/wife’s name” are shown to be in Schedule III of the Regulations, but optional in case of regulations. There is no verification required to be done in case of adults for father, husband or guardian. Which means, whatever an applicant says his father’s name is, the respondent no. 2 shall gullibly accept it as gospel truth.” The respondent no. 2 is UIDAI.

Arbitrariness is rampant in the entire UID/Aadhaar scheme. Section 2 (n) of Aadhaar Act, 2016 defines ‘identity information’. It states that “identity information” in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information” This definition squarely lays down that information, both demographic as well as biometric, establishes the identity of an Aadhaar card holder. Therefore, information collected from an individual during the Aadhaar application process could not be treated with such disparity which would allow even false demographic information to pass under the scanner of the UIDAI without even being sufficiently verified.

Unlike Justice Dr Chandrachud’s order, the order of Justice Protik Prakash Banerjee, Calcutta High Court has erred in his observation with regard to his assumption about the uniqueness of biometric information and duplication of UID/Aadhaar based identification. Justice Banerjee forgot to record his views on two differing orders authored in Justice Dr Chandrachud’s order and Justice Sikri in the matter of UID/Aadhaar and Aadhaar Act. He may have to rectify these aspects of his order on some occasion.

The Constitution Bench comprising Chief Justice of India Dipak Misra and Justices Sikri, A.M. Khanwilkar, Dr Chandrachud and Ashok Bhushan.  Out of these five judges presiding judge Justice Misra retired on October 2, 2018 and Justice Sikri who retired on March 6, 2019. Now the composition of the Constitution Bench has changed. Notably, the tenure of only one judge out of the original 3-Judge Bench of Justices J Chelameswar, S. A. Bobde and C. Nagappan that heard the UID/Aadhaar case and referred it to Constitution Bench survives. Justice Bobde is now the second senior most judge of the Court. He was also part of the 9-Judge Bench that decided the aspect of fundamental right to privacy in the UID/Aadhaar case. Judicial discipline creates compelling logic for his inclusion in the Constitution Bench which has to hear some five petitions challenging the majority order authored by Justice Sikri. Imtiyaz Ali Palsaniya, the fifth petitioner has challenged the controversial Section 139AA of the Income-tax Act, which made mandatory linking of Aadhaar with permanent account number (PAN). The other four petitioners are: Beghar Foundation, MG Devasahayam, Mathew Thomas and Jairam Ramesh.

Besides these cases, as a consequence of the Aadhaar Ordinance, the 5-Judge Constitution Bench is under logical compulsion to subject this colourable legislation to judicial review because having failed in direct legislation, the government is legislating indirectly. Like Aadhaar Act, this Aadhaar Ordinance is an exercise in manifest breach of limits imposed on the government by the Constitution at the behest of anonymous foreign and domestic donors with military connections. Both the Act and the Ordinance establishes a biopolitical paradigm with repellent geopolitical consequences paving the way for the return of the Concentration Camp abandoning the original political relation between the Citizens and the State wherein natural rule of law is suspended. 

Dr Gopal Krishna

The author is convener Citizens Forum for Civil Liberties (CFCL). CFCL is research and advocacy forum focused on surveillance, UID/Aadhaar and DNA profiling technologies since 2010. He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is also the editor of www.toxicswatch.org. Twitter:@krishna1715  
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