the commons by communities.

T

Why is Plachimada struggle unique? Is it because it is a struggle against the world’s most well known brand – Coca-Cola, the symbol of US imperialism? Or a struggle of primarily the adivasis, the symbol of “primitiveness and backwardness”? What made this poorest and assetless section stand up more than those peasants whose farms have been affected? How were they able to turn around the unhelpful panchayat, the antagonistic political parties, the sceptical media and “development”-obsessed state government from hostility to solidarity?

Plachimada, a sleepy backward village, had no significant connections with the mainstream society. Adivasis and dalits of Plachimada barely survived, people unlettered in the sophisticated political power games and diabolical machinations of the “worldly”. But this village has thrown up numerous challenges. It has proved that a persistent strong struggle can be waged by the weakest against a multinational giant who can even manipulate governments and politics. This struggle of the weakest can indeed make an arrogant MNC change its position from “a mischief of a few politically motivated persons” to “we are willing to shift to some other place”. This struggle over a “non-issue” can get the government administrative machinery to change from active support to Coca-Cola to hesitatingly, but finally, come out with at least the partial truth. This struggle of “a handful of persons” in front of the Coca-Cola plant could get its issue raised at the company shareholders’ meeting in the US and mobilise students across the US and UK to push Coca-Cola off their campuses causing collateral damage worth millions of dollars. The “false motivated allegations” raised by this struggle actually began drawing the contours of the power of the local self-government (panchayat) with regard to their responsibility to public welfare, the jurisdictional division of power between the panchayat and the state government, and the legal duty of the state to protect and regulate the natural resources in accordance with the doctrine of public trust; This struggle has forced the fundamental issues into the legal arena such as “who has the primary decision-making rights over water (groundwater in this case) – the people, the elected panchayat, the state or the centre? What are the primary use of water – domestic, irrigation, or industrial? Which is superior

The tribal areas in Kerala are yet to be notified as a “scheduled area”. The Kerala Scheduled Tribes Act (Restriction on Transfer of Lands and Restoration of Alienated Lands) enacted in 1975 remains unimplemented with its fate now pending in the Supreme Court [Bijoy and Ravi Raman 2003].

Pushed to starvation, adivasi assertions in Kerala led to the October 16, 2001 agreement between the government and the leaders of the movement (ibid) after prolonged struggle of a decade that culminated in the 48-day sit-in in front of the secretariat threatening to erupt into a popular statewide adivasi revolt. All landless adivasis and those owning less than an acre were to receive up to five acres within one year1 besides a cabinet resolution to bring adivasi habitations in the state under the Schedule V. These have not yet materialised. The scope for revitalisation of adivasi villages in the state with the constitutional provision for self-governance available at least in law has been denied to the adivasis of Kerala (ibid).

It is in this context that the state government granted Coca-Cola the permission to expropriate yet another life sustaining resource – water – from Plachimada to “develop” this backward region to add figures to the state GDP.

Coca-Cola in Plachimada

The Coca-Cola2 of Atlanta, US, reentered in 1993 after being expelled from the country in 1977 when it failed to comply with the Foreign Exchange Regulation Act (FERA) under which it was to reduce its equity stake. The Hindustan Coca-Cola Beverages Private (HCCB), registered in 1993 as a subsidiary of Coca-Cola, invested more than US$1 billion between 1993 and 2003 establishing 27 whollyowned bottling operations supplemented by 17 franchisee-owned bottling operations and a network of 29 contract-packers to manufacture a range of products.

The HCCB (hereinafter referred to as Coke), at the behest of the Left Democratic Front government, established its factory at Plachimada in Moolathara village of Perumatty panchayat in Chittoor taluk, located south-east in Palakkad district bordering south-western part of Coimbatore district of Tamil Nadu. Coke acquired 34.64 acres, mostly paddy fields, in 1998. The Perumatty panchayat granted a licence to Coke on January 25, 2000.3 The plant was commissioned in March 2000 to produce its popular brands such as Coca-Cola, Fanta, Sprite, Limca, Kinley Soda, Maaza and Thumps-Up. There were three lines of production, namely, returnable glass bottle line, PET line and Maaza line. The KSPCB gave a permit to produce 5,61,000 litres of soft drink per day requiring 3.8 litres of water for a litre of soft drink. The firm employed about 130 permanent workers and 250 contract labourers.

The Perumatty panchayat with a population of 29,500 (2001) comprises Moolathara, Vandithavalam and Perumatty and parts of Pattancherry and Thathamangalam villages with an area of 60.79 sq kilometres divided into 15 wards. Plachimada is a part of Moolathara village. The plant borders Vijaya Nagar, Plachimada and Rajiv Nagar colonies and Veloor, Madhavan Nair, Kampalathara and Thodichipathy colonies within three km of the factory. All these are in Perumatty panchayat except Rajiv Nagar and Thodichipathy colonies which are the parts of Pattancherry panchayat. Thirty to forty per cent tribals, 10 per cent dalits and other communities make up the population in these seven worst-affected colonies, popularly known as “Plachimada” ever since the struggle emerged.

Livelihood is largely agriculture based. The ezhavas, a few Muslims and other backward communities own almost all the cultivable land. Most of the STs and SCs, if not all, simply own land ranging from 1 to 10 cents used for dwelling. Once a predominantly paddy growing marshy land, the major crops now are coconut, paddy, groundnut, vegetables, maize, mangoes, bananas, flowers and fodder grass. The agricultural daily wage averages Rs 80 for men and Rs 40 for women with employment dwindling to about 120 days per year. The STs followed by SCs and the majority of the Muslims constitute the very poor. The STs, mostly the eravalan along with malasar and vilvedan, were brought by the landlords or migrated over time to work in these lush paddy growing plains from Amaravathi forests and Anamalai hills of adjacent Pollachi taluk of Coimbatore district, Tamil Nadu.

Plachimada, located in the rain shadow region of Western Ghats, depends on groundwater and canal irrigation. The Perumatty panchayat has 304 large tanks of which 291 are private and the remaining 13 are public tanks.4 Chitturpuzha irrigation project of Parambikulam-Aliyar Project (PAP), a Tamil Nadu-Kerala interstate project5 provides canal irrigation. The Coke plant at the PalakkadMeenakshipuram-Pollachi road is located about 3 km north of the Meenkara dam reservoir and a few hundred metres west of the Kambalathara and Vengalakkayam storage reservoirs. The Moolanthodu main canal from the Moolathara barrage passes hardly 10 metres north of the factory compound. The main Chittoorpuzha itself is 2 km due north of the plant.

Adivasis Launch Struggle against Coca-Cola

The October 16, 2001 agreement between the government and the Adivasi-Dalit Samara Samithy marked a watershed in the contemporary history of adivasi struggles. It was in this period of exuberance that the adivasis of Plachimada began associating the change in quality of groundwater and the receding water table to the operation of the Coke plant. About 85 lorry loads of beverage products containing 550600 cases each with each case containing 24 bottles of 300 ml capacity left the factory premises daily. Six bore-wells and two open-wells in the factory compound sucked out some 0.8 to 1.5 million litres of water daily. Within two years, the people around the plant experienced problems that they had never encountered before, the receding of the water table and the drastic change in the quality of water spread around 1 to 1.5 km radius of the plant. Water shortage upset the agricultural operations. Water became unfit for human consumption and domestic use. The “socially responsible” corporate sold the foul smelling slurry and sludge waste as fertiliser to the unsuspecting farmers, later given “free”, and still later, with protests and objections, surreptitiously dumped on the wayside and on lands at night.

The people questioned the much awaited “development” in this “backward” area as they had earlier welcomed the plant as the beginning of “development”. The local power elite and those who hoped to benefit directly from the activities of the plant and from peripheral development immediately decried this as emerging from “ignorance” and “backwardness”. The almost negligent local employment was declared as the cause of the “unfounded” allegations. Initial scepticism that adivasi protests would not garner public support and would be scorned by the mainstream gave way to optimism with popular support for the adivasis’ struggle for land, the 2001 agreement and thereafter.

The Plachimada struggle was launched by the ‘Coca-Cola Virudha Janakeeya Samara Samithy’(Anti Coca-Cola Peoples Struggle Committee) on April 22, 2002 with a blockade by over 1,300 people, mostly adivasis, demanding that the Coke plant be shut down as it was devastating their source of survival, that Coke be held fully responsible and liable for the destruction of the environment and their livelihood resources, and criminal action be initiated against Coke. They were taken into custody and removed by the police. Coke filed a case on April 26, 2002 in the high court against the struggle committee demanding that the picket be dismantled and police protection be provided to the plant. The court conceded the right of people to protest peacefully and ordered the police to provide protection to both the plant and the protesters. However, heavy police protection was provided instead to the plant. Frequent police intimidation, arrests and false cases to create a violent situation so that the struggle could be suppressed has failed till date.

For the first two months or so, the struggle faced hostility and threat from the combined strength of the local political parties such as the Janata Dal, Communist Party of India (Marxist), the Bharatiya Janata Party and the Congress besides the elected representatives. The local Janata Dal-controlled panchayat (the only one to be so in the state) was hostile to the struggle. The media mostly pretended to ignore the struggle or gave more credence to Coke’s version with some arguing the case for the company. Coke campaigned that the protests were “politically motivated”, meaning, the Naxalites, so the struggle had to be squashed by the state. The bogey of “development” and unemployment of the Coke workers were raised. Coke’s environmentally friendly socially responsible approaches were also harped upon. The struggle persisted with the adivasi women, the main victims, forming the backbone of the struggle. Diverse sections, from the Gandhians to the revolutionary left to the environmentalists and youths, from across the state soon supported the struggle organising dharnas, blockades, sit-ins, marches, public rallies and meetings. People from all parts of the state – school children to academics to peasants – came in hordes expressing solidarity. The Plachimada Solidarity Committee has drawn in some 32 organisations from across the state. Support campaigns emerged from different parts of the country as well as internationally.6Protests against Coke plants from other parts of the country also emerged. The media could no longer ignore the struggle despite Coke’s alleged arm-twisting. Coke then acknowledged that there indeed was a problem with the water for which they were not responsible. They offered drinking water, and started rainwater-harvesting programmes within and outside the plant. Coke itself had to organise water from elsewhere as the aquifers were depleted.

With the struggle gaining popularity, the CPM, organised protests against Coke, the ruling Congress Party and the government and in the process de-legitimised the local party leaders who supported Coke. Janata Dal, which controlled the panchayat, also fell in line. Except the then ruling Congress Party, most of the small and large parties now vie with each other in declaring their opposition to Coke’s extraction of water. The boycott call of US-products caught popular imagination during the critical days of US-Iraq invasion. In the popular mind Coke symbolised the US imperialism.

As early as March 4, 2002, Sargam Metals Laboratories7 concluded that “water from the panchayat well contains very high levels of “hardness” and salinity that would render water from this source unfit for human consumption, domestic use (bathing and washing), and for irrigation”.

The government primary health centre concluded that the water is “not potable” around the Coke factory on the basis of the analysis carried out by the government’s regional analytical laboratory and on May 13, 2003 asked the panchayat to ensure that the public be duly informed. For three years, Coke dumped the sludge from the plant in open fields and even offloaded most of it to local farmers as manure/ fertiliser. On July 25, 2003, BBC Radio 4 Face the Facts programme reported that carcinogens were found in the waste. The report stated that “Of the three solid wastes analysed, one showed relatively high levels of two toxic metals, namely, cadmium and lead. Some other heavy metals, including nickel, chromium and zinc, were also present at levels significantly above those expected for background, uncontaminated soil and sludge. The presence of high levels of lead and cadmium is of particular concern. Lead is a developmental toxin in humans, particularly noted for its ability to damage the developing nervous system. Cadmium is especially toxic to the kidney, but also to the liver – it is classified as a known human carcinogen.” The water sample collected from a well near a farm where waste was dumped contained 10 micrograms/litre of cadmium and 65.7 micrograms/litre of lead (the permissible limits prescribed by the WHO being three micrograms/litre and 10 micrograms/litre respectively). BBC Radio 4 presenters had simply wanted to find out whether the “fertiliser” was indeed what Coke had claimed, i e, fertiliser.

The KSPCB confirmed the BBC Report on August 7, reporting a figure more than double of what the BBC reported and four times the legally prescribed norm. The KSPCB ordered Coke to stop supplying the waste, recover all the waste transported outside and store them safely in the plant site. It later carried out one more test, which reported negligible traces of carcinogens. The government itself had to reject this as being unscientific. On August 5, the Centre for Science for Environment (CSE), New Delhi, reported that soft drinks, including that of Coca-Cola, tested for pesticides higher than the permissible level in the US and European Union.8

The Supreme Court Monitoring Committee on Hazardous Wastes (SCMC) constituted to monitor the implementation of the Supreme Court’s order9 of October 14, 2003 visited Plachimada on August 12, 2004. Its report of August 14, 2004 indicted Coke for “the unauthorised disposal of sludge”... “without prior approval of the authorities concerned with agriculture, disposed of its sludge (containing heavy metals) to farmers in the neighbourhood as fertiliser” and “was unable to convince the committee of the source of the toxic heavy metals found in the sludges”. The SCMC concluded that “the company will take quick measures to ensure water supplies to all the persons in the vicinity of the plant”.

The report of the Joint Committee on Pesticide Residues in and Safety Standards for Soft Drinks, Fruit Juice and Other Beverages” of the Parliament stated at Para

2.123 that after “sludge analysis revealed cadmium content up to 338.8 mg/kg”, the Central Pollution Control Board advised the KSPCB “to direct the company to dispose of the effluent treatment sludge as per the hazardous waste rules”.

Outlook, a news magazine, commissioned Sargam Metals Laboratories to carry out a water analysis on April 23, 2005 from a well. The lab reported that the water “chemically does not meet the requirements for most of the parameters tested for potability as per ISO 10,500 specifications set by the Bureau of Indian Standards”. “A pH value of 3.53 (against the permissible 6.5-8.5 at 25 degree C), making it highly acidic”. “If consumed, it will burn up your insides.” Such water cannot be used for cooking, washing or agriculture. “Clothes could tear if washed in such water, food will rot, crops will wither”. While the permissible level of total dissolved solids (TDS) in potable water is 2,000, the water…recorded a TDS count of 9,624. The permissible manganese level is 0.3, but was 6.18 in the tested sample. Likewise, iron was 1.58 while it should be 1 or less.

The Hazards Centre, New Delhi and People’s Science Institute, Dehradun released ‘Groundwater Resources in Plachimada: Coca-Cola Stores Toxics for Future Generations – A Report on Present Status of Water Quality and Problems Faced by the Villagers in the Surrounding Areas of Hindustan Coca-Cola Beverages Located at Plachimada, Palghat’ in June 2006 based on their study of five open wells and four bore wells within one km radius of the plant in November 2005. Cadmium was found in all the wells above 0.01mg/l, the permissible limit as prescribed by Bureau of Indian Standards (BIS) for drinking water quality, lead was found in all the open wells and two bore wells above the permissible limit of 0.05mg/ l and Chromium concentration was above the permissible level of 0.05mg/l in all the wells except one bore well. Heavy metal concentration was more in the bore wells than in the open wells. The total natural sources around the plant were contaminated.

On August 2006, the CSE released its second report of 57 samples of 11 soft drink brands, from 25 different manufacturing plants of Coca-Cola and PepsiCo, spread over 12 states found pesticide residues in all samples, on an average 24 times higher than BIS norms which have been finalised but not yet notified.10

The Legal Battle

The Perumatty panchayat resolved to cancel the licence issued to Coke under the Kerala Panchayat Raj Act and issued a show cause notice on April 9, 2003 alleging depletion of groundwater resource, which was challenged by Coke.11 The panchayat cancelled the licence nevertheless on May 15 and asked Coke to stop production from May 17, 2003. The high court asked Coke to approach the local self-government department (LSD) which stayed the decision of the panchayat to cancel the licence on June 12 on the grounds that the panchayat had exceeded its powers as conferred under the Kerala Panchayat Raj Act.

The KSPCB meanwhile ordered Coke on August 7 to stop the supply of the waste due to the presence of cadmium beyond the permissible limit. The panchayat responded with a show cause notice to Coke on September 18 which was challenged by Coke in the high court. Meanwhile, the LSD ordered the panchayat on October 13 to constitute an expert team for a detailed investigation to determine the fate of the licence to Coke. The panchayat went to the high court against this order12 who confirmed in its judgment of December 16, 2003 that the panchayat was within their powers to refuse licence. Coke challenged the cancellation of the licence claiming that the decision to cancel licence was arbitrary, prejudiced and not based on facts or substantiated scientifically. The court directed Coke to close all the bore wells and to stop extracting groundwater beyond what was required for irrigating 34 acres of land. Further, the government was asked to carry out elaborate investigations into all allegations related to water and contamination of water and land. In its ruling, the court held that groundwater was a public property held in trust by a government and it had no right to allow a private party to overexploit the resource to the detriment of the people. The panchayat was well within the limit to consider public welfare above private rights notwithstanding that the landlord was well within his right to extract the water below the ground.

Though the single bench ordered Coke to find alternative sources of water, the division bench13 upturned the decision ensuring status quo. In January 2004, the monitoring of the consumption of water was also ordered to be carried out by the representative of the expert committee appointed by the high court along with the Perumatty gram panchayat. Between January 12 and 19, the Coke plant used 2,75,000 litres per day. The panchayat was also ordered not to take any steps that would lead to the closure of the plant.

With the onset of summer, the government declared seven out of the 14 districts in the state, including Palakkad, as droughthit. Once regarded as Kerala’s rice bowl, Palakkad is the only district that was under a drought spell since 1998. In February, the government banned the use of groundwater by Coke until mid-June when the monsoon was expected to set.

The high court then granted Coke one month to close down its wells and find an alternative source of water. But the judge also directed the panchayat to renew the licence of the plant restraining it from interfering with the functioning of the factory. The plant stopped operations from March 9, 2004 after the high court upheld the government order prohibiting the company from drawing groundwater till mid-June.

The annual renewal of licence to Coke that was refused by the panchayat on April 7, 2003 came up once again on February 17, 2004 for the five-year renewal which the panchayat rejected. The state government promptly upturned the decision of the panchayat saying that it lacked this power. The high court however stayed the government’s decision and directed Coke not to resume operation.

Coke submitted an application to the KSPCB on September 20, 2004 for renewing the consent to operate with effect from January 1, 2005. Since the application was defective, especially the silence over the source of cadmium in its waste, consent was denied. The board contended that the sludge generated by the company contained the heavy metal cadmium at concentration of 200 to 300 mg per kg of sludge, which is 400 to 600 per cent above the tolerance/permissible limit.14Coke had also not complied with the SCMC order to supply piped drinking water to the affected families and to install reverse osmosis system or any other more efficient system for better treatment of effluent. On the 1,000th day on January 15, 2005, agitators blockaded the factory declaring that reopening of the factory would be prevented at all cost.

On February 11, 2005 the investigation team15 constituted by the high court on December 19, 2003 submitted the final report on investigations on the extraction of groundwater by HCCB at Plachimada. The team permitted extraction with restrictions up to 5 lakh litres per day and lesser according to the extent of rainfall. Based on this report, the high court made it very clear on April 7, 2005 that “...permissible groundwater withdrawal could be 5 lakh litres per day, if for relevant year, average rainfall was available. If it was less by 10 per cent, exploitation is to be reduced to 4 lakh litres per day. If the monsoon is less by 20 per cent or 30 per cent, restriction should have been made to 3 lakh litres and 2 lakh litres respectively. In a case of a year where there was 30 per cent lesser rainfall than average, total ban of use to be imposed”. This restriction was against the very grain of Coke’s contention that there is enough groundwater and that Coke’s extraction and requirement do not and will not affect groundwater availability in anyway.

That the report was flawed on various counts was pointed out by a number of people on matters of reliability, absence and manipulation of data, glossing over of inconvenient data, omissions of certain facts in calculations, arbitrary assumptions, procedural errors and silence over the issue of quality of water.16 The court chose to ignore the counter to the report prepared by CSE submitted by the panchayat and brushed away the affidavit filed on behalf of the government on the ground that it was from a junior officer of the groundwater department when the senior officer was himself a part of the investigation team. The court also observed that “we have to assume that a person has the right to extract water from his property, unless it is prohibited by a statute”. And there was no such prohibitory statute. Rules to activate the Kerala Groundwater (Control and Regulation) Act, 2002 were not notified. The high court lifted the ban imposed on the company to produce, declaring that the panchayat was not justified in not issuing the licence before a scientific assessment was made and ordered that licence be issued within one week of the application by Coke, provided that the company had the licence under the Factories Act and the necessary clearance from the pollution control board. There were protests in different parts of the state against the court verdict.

On April 13, 2005, Coke filed an application to the panchayat for renewal of licence for a period of five years from April 1, 2005. On April 22, 2005, the third anniversary of the struggle, the Struggle Committee and the Struggle Solidarity Committee declared that Coke would not be permitted to operate in Plachimada. On April 26, the panchayat rejected the application citing non-fulfilment of the conditions set by the high court for issue of licence. The court had stated that the labelling of the contents of the products was a subject matter that came within the purview of the food ministry and not the panchayat. All that remained then was clearances under the Factory’s Act and from the KSPCB.

The high court on June 1, 2005 ordered Perumatty panchayat to consider issuing the licence within a week of application by Coke, and if the panchayat did not issue the licence in favour of the company then the company was to be deemed to have received a licence with a rider that within three months Coke was to have all required clearances. On June 6, the panchayat issued a three-month licence imposing conditions,

CENTRE FOR THE STUDY OF CULTURE AND SOCIETY

CSCS announces the following positions:

Associate Fellow: Three posts: One in Law, Society and Culture; one in Education; and one General. Salary commensurate with UGC Lecturer. Candidates, preferably under 35 years, should have submitted their Ph.D. dissertations in any area of humanities/social science research. Law, Society and Culture candidates with a Law degree are not required to have a Ph.D.

The posts are for an initial period of one year, extendable to two.

Candidates should be engaged in innovative interdisciplinary work in which cultural questions figure centrally. Selected candidates shall participate in the teaching and research activities of the Centre.

Applicants should submit the following:

Please send the application to: The Administrative Officer, Centre for the Study of Culture and Society, 466, 9th Cross, Madhavan Park, 1st Block, Jayanagar, Bangalore – 560 011. An advance copy may be sent by email. For more information, write to the CSCS Director (teju@cscsban.org) or log on to the website: www.cscsban.org.

Last date for receiving applications: December 1, 2006. Joining date for selected candidate: January 15, 2007.

CSCS reserves the right to relax or waive required qualifications, and to appoint faculty members by invitation. Those who have applied earlier need not re-apply.

which were not acceptable to Coke. Instead, the Plachimada plant, shut down since March 2004, commenced operation on August 8, 2005 citing the high court’s permission to operate as though it had the licence when it did not. The KSPCB did not consider Coke’s renewal application of September 20, 2004 for commencing operation from January 1, 2005 as the plant had ceased operation. When the high court permitted Coke to seek licence and commence operation, the KSPCB rejected the application on August 19, 2005 citing the excessive heavy metal concentration in the sludge, non-compliance of the SCMC orders.

The KSPCB ordered Coke to shut down on August 19 and to “stop production of all kinds of products with immediate effect”. Meanwhile, the panchayat and the state government moved the Supreme Court in May 2005 and September 2005, respectively. When Coke complained to the high court of the panchayat’s recalcitrant attitude with regard to court orders, the court directed the panchayat once more to issue the licence on November 16. Coke applied for the licence on December 7, 2005. On December 20, the panchayat resolved that “the streams and groundwater in all the areas under wards 1 to 8 and wards 11 to 17 that were privately and publicly held shall be used exclusively for domestic use and irrigation purposes only from January 1, 2006”. This was based on the notification of Chittoor block as a “notified area” by the water resource department on November 19. The panchayat issued the licence for three months from January 4, 2006 to April 4, 2006 stipulating that the company shall not extract groundwater for industrial purpose as the panchayat was under the category of “overexploited”. Coke was to get the required clearances from KSPCB and under the Factories Act in 15 days, provide one lakh litres per day to the inhabitants of the affected areas and ensure that the waste shall not contain any hazardous substances. In January 2006, Coke began talking about shifting with compensation.

The Left Democratic Front, assuming state power in the assembly elections in April-May 2006, declared its intention to work closely with the groups in Plachimada to take necessary steps to resolve the problems associated with Coke, constitute an expert committee to assess the impacts of water shortages and pollution on farmers and the community, issue directions to the director of health services to conduct a comprehensive health camp as an interim measure, explore the possibility of framing criminal charges against the company under appropriate provisions, issue directions to withdraw all criminal cases against hundreds of people involved in the struggle, explore criminal litigation against Coke for pollution caused that has disproportionately affected backward and scheduled communities, and follow up with further action on the notification of Chittoor taluk where Plachimada is located.

Responding fast to the CSE’s second report of August 2006 on pesticides in soft drinks, the LDF government banned manufacture and sale of Coca-Cola and Pepsi-Cola in all of Kerala in the interest of public health on August 11, 2006 under Section 7(iv) of the Prevention of Food Adulteration Act, 1954. In contrast, criminal action against Coke for contamination of groundwater in Plachimada was yet to be undertaken despite mounting evidence.

Groundwater Regulatory Authority

Though the Kerala Groundwater (Control and Regulation) Act was enacted in 2002 for the purpose of conservation, regulation and control of extraction and use of groundwater, rules were neither notified nor was the Groundwater Regulatory Authority (GWRA) constituted. The Plachimada struggle (the high court had also pointed out the absence of a regulatory statute on water use) forced the government to notify the Groundwater (Control and Regulation) Rules in 2004. On November 19, 2005 the water resource department notified five blocks including Chittoor as “notified areas” based on the report by the Central Groundwater Board, Kerala region of July 2005.17 The report, based on March 2004 data, concluded that of the 151 blocks, five blocks fell under the category of “over exploited” of which Chittoor block was one such.18 The groundwater regulatory authority was yet to decide what it should do next.

Deceptions Unlimited

In 2003, the India advisory board of Coke formed an India Environment Council under the chairmanship of the “green judge” (CNG case of Delhi) justice B N Kirpal, former chief justice of India. The advisory board, comprise some of the country’s top professionals and distinguished personalities19 to steer its environment plan and policies and “to guide the company on various issues, including future strategies, corporate citizenship, social responsibility and corporate governance”. Kirpal at a press conference held at the Coke plant on March 10, 2004 said that he did “not agree with the high court order declining to stay the state government’s order prohibiting drawing of groundwater by the Coke plant”. He said, “I hope it (the high court) will examine these matters on a scientific basis while taking a final decision on the contention of drawing groundwater and its alleged depletion”. He also criticised the Plachimada agitation terming it as “agitation for agitation’s sake”.

Coke made claims that “their production process follows zero discharge”, meaning that all their waste water was reused; “a rainwater harvesting system has been implemented that recharges groundwater with more than what the company extracted” and that the waste was not hazardous. It showed off its funding to and collaboration with non-governmental organisations and the awards obtained for environmental concerns. Coke declared that it would get The Energy Research Institute (TERI) “with deep experience on sustainability issues to develop a transparent and impartial independent third party assessment of water resource management practices at Coca-Cola company facilities in India, including potential contamination”,20 an institute that also receives sponsorship from Coke.21

The lack of improvement in the quality and quantity of groundwater in Plachimada even after more than two years of the closure of Coke plant was proof enough that the recharge by rainwater harvesting into the sub-surface is negligible.

Whose Water Is It Anyway?

The Plachimada struggle, well into the fifth year, does not see any solution in sight primarily due to inadequacies in the laws of governance related to water. Coke has demonstrated its utter disregard of the local communities, the elected representatives, and the civil society organisations besides the structures of governance and law. The state has demonstrated its unwillingness to reign in this errant and make it accountable under the laws.

The struggle has clearly shown the incapacity of the state to act on its own against capital. Public protests to raise issues, provide explanations and direction to resolving them do not any longer lead to the requisite political, administrative or judicial response. The struggle has also to define the solution and politically follow it through to transform the governance system as the present system has become subservient to, controlled or influenced by an instrument of market and global capital.

The law is yet to clarify on matters related to rights over water and governance of water. The sources of law are statutory provisions, case laws or precedential court decisions, doctrines and principles deriving from the British common law system, international agreements, personal law and customary law and practices. The right to groundwater is linked to right to land supported by the legal construction under the Indian Easements Act of 1882 by which there is almost absolute ownership of groundwater by the property holders. At the same time, the state as an eminent domain has power over natural resources. The British colonisers introduced the concept of eminent domain of the state that all resources that were “unclaimed” or not “used” belonged to the empire. These laws still remain as statutory laws and constitute the framework for governance, creating both a barrier for democratisation of the society and a wedge between the state and the people leading to intense increasing conflicts.

In the federal set up in the Constitution, subject matters as “water” and “land” are within the legislative power of the states under the Article 246 and List II of the Seventh Schedule. “Water” is expressed as “water supplies, irrigation and canals, drainage and embankments, water storage and water power” under the Entry 17 of List II. Apart for a reference to an exception for interstate rivers, it is the state that is the exclusive authority to make laws with respect to “water”. The ministry of water resources, government of India, had issued model bills for the state to enact centralising the authority with the state governments. Under this, the state groundwater authorities are to manage and develop groundwater resources.

The Groundwater Authority in Kerala which has constituted under the Kerala Groundwater Act, 2002 is now the official regulatory organ of the state. The state failed to protect and conserve groundwater; permitted Coke to contaminate and pollute as well as deplete the groundwater notwithstanding protests for four years. Under the Water (Prevention and Control of Pollution) Act, 1974 as amended 1988, the KSPCB failed to respond adequately in time to prevent, contain and rectify pollution of groundwater and surface water.

On the other hand, the Panchayat Raj Act, 1993 in pursuance to Article 40 provides for “drinking water” and “minor irrigation water management and watershed development” in the Eleventh Schedule as subject matters over which responsibility can be devolved from state to village level. Subsequently, it is up to each and every state to pass regulations on the authority of the panchayats on the 29 listed subjects. Accordingly, duties of the village panchayats in Kerala are “maintenance of traditional drinking water sources, preservation of ponds and other water tanks, setting up and management of water supply schemes”.22 The panchayat delayed in responding to the problems of overexploitation and pollution.

Matters such as natural resource management including water are very much a community domain exercised through customary laws and practices. The Constitution recognises customs and customary practices. The term law in the Article 13 includes customs and usages having the force of law but not infringing any of the fundamental rights conferred by Part III of the Constitution. In reality, customary laws are subjected to being in consonance with the statute made laws, which are still largely a colonial legacy. Article 21 on fundamental rights confers the right to life, not merely of animal existence but life with human dignity, and right to livelihood except according to a due process of law. The Article 39(b) enjoins a duty upon the state to direct its policy towards ensuring that the ownership and control of the material resources of the community are so distributed as best to subserve the common good. The Part IV-A of the Constitution imposes a duty (and not authority) on the citizens to protect and improve the natural environment including forests, lakes and rivers which are explicit directives to be promoted through legislations.

It is in the V Schedule Area that the Panchayat Raj (Extension to Scheduled Areas) Act, 1996 made a decisive departure introducing a frame to decolonise the colonial legislative frame with comprehensive powers for “traditional management practices of community resources”, “safeguard and preserve community resources” and “planning and management of minor water bodies”. The community resources implies water. The assertion of the constitutional intent of community or the people-centric state rather than the state versus people paradigm resulted from adivasis’ struggles. Consequently, the gram sabhas (the people in the village/hamlet) rather than the panchayat are to be in primary command with the restriction placed on the structures at the higher level to not assume the powers and authority of any panchayat at the lower level, of the gram sabha paving way legally for the opening up to a people’s participatory democratic governance system. Yet, the dichotomy between the sovereign right of people and the sovereign right of the state to natural resources persists alongside, a contradiction, which in many places has led the state to wage war on her own peoples. The sovereign right of a nation that is her peoples is clearly on a collision course with the state.

The Way Forward

Water is a natural right – a collective right to be enjoyed by all without prejudice, equitably and according to the needs. The exercise of this collective right over water demands absolute authority of

UGC National Seminar

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Department of Art History and Aesthetics, Faculty of Fine Arts The MS University of Baroda, Vadodara

February 5th to 7th 2007

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communities over water resources. The translation of this authority is achieved by laws and institutions of governance forming the basis of conservation, sustainable use, preservation and development of water resources. This authority is to be exercised fully by the community with the assistance of the state. The community shall govern the water at the primary level.

Solutions for problems of democracy lie in further democratisation. The state of Kerala is simply just ripe for this after the many experiences in decentralisation and people’s planning. The challenge is to move away from decentralisation to that of evolution of non-centralised people’s participatory governance system.

The gram sabha, the fundamental and primary natural unit of governance in the panchayat structure, shall be the competent authority to determine the use, control and management of groundwater and minor water bodies within its geographical jurisdiction. The gram sabha shall have the command over groundwater for “traditional management practices of groundwater resources”, “safeguard and preserve groundwater resources”, “planning and management of minor water bodies” and “management of water supply schemes”. The gram sabha, while exercising its powers to “safeguard and preserve groundwater resources and minor water bodies”, shall have the powers to ensure water to its members, both in sufficient quality and quantity, i e, safe and adequate water. In exercise of this authority, the gram sabha shall reasonably restrict the use of groundwater and minor water bodies to ensure safety and adequacy of water. The gram sabha shall have the authority to take necessary steps and penalise the violators that threaten the quality and quantity of water resources.

All development activities falling within the geographical jurisdiction of the gram sabha shall be carried out with its consent and approval with a view to protect, conserve, sustainably use and develop the said water resources. Resolution by gram sabha to cancel such consent shall automatically lead to cancellation of licence/approval issued by the appropriate bodies/authorities. The gram sabha shall reasonably restrict or ban the use of groundwater and/ or minor water bodies as the case may be, if the gram sabha so considers that such use constitutes a threat to quantity and/or quality of water.

To enable the gram sabha carry out these responsibilities and functions to the fullest extent, it shall call forth the services and assistance of (a) Kerala groundwater authority, (b) Kerala groundwater department, (c) KSPCB, (d) the village panchayat, the block panchayat and/or the district panchayat as the case may be, and (e) other relevant bodies, which shall be made available.

To enable the gram sabha to exercise this natural right, it is therefore necessary that relevant state laws such as (a) The Kerala Panchayat Raj Act, 1994; (b) Kerala Groundwater (Control and Regulation) Act, 2002; (c) The Water (Prevention and Control of Pollution) Act, 1974 as amended in 1988; and (d) any other relevant laws as are applicable are to be amended. The 73rd Amendment, the Panchayat Raj Act, 1993 should be reviewed and amended conferring the command over natural resources to the gram sabhas.

EPW

Email: cr.bijoy@gmail.com

Notes

1 However, land distributed up to December 9,2003 under the accord was 2,862.38 acres benefiting just 2,024 adivasis families of the53,000 families at which rate it would take another five decades to fulfil the task, if it does get fulfilled at all.

2 The Coca-Cola, registered as a trademark in1,887 operates in over 200 countries worldwide,generated more than 70 per cent of its incomeoutside the US by 2003. Interbrand’s GlobalBrand Scorecard for 2003 ranked Coca-Cola the number one brand in the world with a brand value at $ 70.45 billion.

3 Under the Section 232, 234 and 254 of the

Kerala Panchayat Raj Act, 1994.4 Resource Map Report 2001.5 The PAP was signed in 1970 (with retrospective

6 The Colombian workers’ union Sinaltrainal (Sindicato Nacional de Trabajadores deIndustrias Alimenticias) representing employees at Coca-Cola factories along with others,alleged that Coca-Cola and some of its bottlersutilise right-wing paramilitary groups of theUnited Self-Defence Forces of Colombia (AUC),to intimidate and assassinate labour organisers,union leaders and workers in the Coke plants.Together with the human rights violations inIndia, boycott campaigns in US and UK universities have pushed out Coke products fromcampuses in scores of universities.

7 The HCCBPL was also one of the clients of Sargam, a Chennai-based department of scienceand technology, government of India, approvedprivate laboratory.

8 This committee was constituted by the Parliament on August 22, 2003. Their report waspresented to the Parliament on February 4, 2004.

9 The Supreme Court order in writ petition No 657of 1995. 10 http://www.cseindia.org/misc/cola-indepth/cola2006/cola_press2006.htm11 OP No 13513/2003 praying for calling for

records leading to the passing of the resolution.

12 WP (C) No 34292 of 2003.

13 WA No 2125 of 2003 dated December 17, 2003 challenging the judgment of the single judge.

14 KSPCB order PCB/PLKD/CE/32/99 datedAugust 19, 2005.

15 The Team comprised the Centre for WaterResources Development and Management(CWRDM), Kozhikode as the Convenor;Kerala State Ground Water Department; KeralaState Pollution Control Board and HCCB.

16 For instance, see ‘Rain or no rain, water for Coke’ – a report by P N Venugopal andM Suchitra. http://www.indiatogether.org/2005/may/env-plachmada.htm>

17 ‘The Dynamic Groundwater Resources ofKerala as on March 2004’ prepared by theGroundwater department, government ofKerala and the Central Groundwater Board.

18 151 Blocks in the state of Kerala was categorisedas “safe” in 1999. Within a span of just fiveyears, 50 blocks or one-third of the blocks hasbeen declared “unsafe” (five categorised as“overexploited”, 15 “critical” and 30 as “semicritical”) according to the ‘The DynamicGroundwater Resources of Kerala as on March 2004’ prepared by the Groundwater department,government of Kerala and the CentralGroundwater Board. The government of Keralanotified the five blocks, namely, Athiyannur(Thiruvananthapuram district), Kodungalloor(Thrissur district), Chittoor (Palakkad district),Kozhikode (Kozhikode district) and Kasargode(Kasargode district) as “notified areas” witheffect from the 19th day of November 2005.

19 Other members were Naresh Chandra (formerunion cabinet secretary), general V P Malik(retird and the former chief of staff, IndianArmy), Deepak Parekh (chairman, HDFC),S M Dutta, (former chairman, HindustanLever), Sunil Kant Munjal (managing director,The HeroGroup), Jairam Ramesh (economist),Ustad Amjad Ali Khan (sarod maestro), andShyama Chona (educationist)<http://www.smartechindia.com/customers/cocacola/news/images/Indian_advisory_board/ie_chd.gif>

20 Quoted from the letter of Donald R Knauss, president, Coca-Cola North America to theTim Slottow, executive vice president and CFO,University of Michigan, US dated April 10,2006.<http://www.umich.edu/news/BG/KnaussMich4-06_final.pdf> The University ofMichigan suspended sales of Coca-Colaproducts on its three campuses since January 1,2006 over Coke’s human rights and environmental abuses abroad. Coke’s contracts with the university are worth about US$1.4 million.21 See for instance, http://www.teriin.org/project_inside.php?id=17193&area=&proj_type=ongoing22 Third schedule under Section 166 of the Kerala Panchayat Raj Act, 1994.

References

Bijoy, C R and K Ravi Raman (2003): ‘Muthanga:The Real Story – Adivasi Movement to RecoverLand’, Economic and Political Weekly, May 17.

TMPC (2002): ‘Adivasi Punaradhivasa VikasanaParipadikkulla Prathyeka Suparsakal’ (SpecialRecommendations for the Rehabilitation and Development of Adivasis) submitted by theTribal Master Plan Committee (TMPC) to thestate planning board (draft for discussion),January 1, p 18.